DEPARTMENTOFDEFENSE

LAW OFWARMANUAL

JUNE2015 OFFI CEOFGENERALCOUNSEL DEPARTMENTOFDEFENSE FOREWORD

The law of war is of fundamental importance to the Armed Forces of the United States.

The law of war is part of who we are. George Washington, as Commander in Chief ofthe Continental Army, agreed with his British adversary that the Revolutionary War would becarried on agreeable to the rules which humanity formed and to prevent or punish everybreach of the rules of war within the sphere of our respective commands. During the Civil War,President Lincoln approved a set of Instructions for the Government of the Armies of theUnited States in the Field, which inspired other countries to adopt similar codes for their armedforces, and which served as a template for international codifications of the law of war.

After World War II, U.S. military lawyers, trying thousands of defendants before militarycommissions did, in the words of Justice Robert Jackson, stay the hand of vengeance andvoluntarily submit their captive enemies to the judgment of law in one of the most significanttributes that Power has ever paid to Reason. Reflecting on this distinctive history, oneChairman of the Joint Chiefs of Staff observed that [t]he laws of war have a peculiarlyAmerican cast. And it is also true that the laws of war have shaped the U.S. Armed Forces asmuch as they have shaped any other armed force in the world.

The law of war is a part of our military heritage, and obeying it is the right thing to do.But we also know that the law of war poses no obstacle to fighting well and prevailing. Nationshave developed the law of war to be fundamentally consistent with the military doctrines that arethe basis for effective combat operations. For example, the self-control needed to refrain fromviolations of the law of war under the stresses of combat is the same good order and disciplinenecessary to operate cohesively and victoriously in battle. Similarly, the law of warsprohibitions on torture and unnecessary destruction are consistent with the practical insight thatsuch actions ultimately frustrate rather than accomplish the mission.

This manual reflects many years of labor and expertise, on the part of civilian andmilitary lawyers from every Military Service. It reflects the experience of this Department inapplying the law of war in actual military operations, and it will help us remember the hard-learned lessons from the past. Understanding our duties imposed by the law of war and ourrights under it is essential to our service in the nations defense.

Stephen W. Preston General Counsel of the Department of Defense

ii PREFACE

This manual is a Department of Defense (DoD)-wide resource for DoD personnel

including commanders, legal practitioners, and other military and civilian personnel on the lawof war.

This manual has many distinguished antecedents that have provided important guidanceto the U.S. Armed Forces. For example, General Order No. 100, the Instructions for theGovernment of Armies of the United States in the Field, commonly known as the Lieber Code,was prepared by Professor Francis Lieber and approved by President Abraham Lincoln duringthe Civil War in 1863.1 A similar code related to naval warfare titled The Law and Usages ofWar at Sea: A Naval War Code was prepared by then-Captain Charles H. Stockton andapproved by President William McKinley in 1900. 2 The War Department published instructionsfor the armed land forces of the United States in a 1914 manual titled Rules of Land Warfare,which was updated in 1917, 1934, and 1940. 3

After World War II, in connection with U.S. ratification of the 1949 GenevaConventions, the Department of the Navy published Naval Warfare Information Publication 10-2, Law of Naval Warfare, in 1955, 4 and the Department of the Army published Field Manual 27-10, The Law of Land Warfare, in 1956, which was updated in 1976. 5 The Department of theArmy also published pamphlets on international law applicable in peace and war in the 1960s,and, in 1979, an updated version of the pamphlet on the law of peace. 6 The Department of theAir Force published in 1976 Air Force Pamphlet 110-31, International Law The Conduct ofArmed Conflict and Air Operations, which was updated in 1980. 7 More recently, the JudgeAdvocate General of the Air Forces School has published a manual titled Air Force Operationsand the Law in 2002, with new editions in 2009 and 2014. 8 The Navy, Marine Corps, and Coast

1 E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armiesof the United States in the Field, Apr. 24, 1863, reprinted in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OFTHE UNITED STATES IN THE FIELD (Government Printing Office, 1898).2 John D. Long, Secretary of the Navy, General Orders No. 551, The Laws and Usages of War at Sea, Jun. 27, 1900,reprinted as Appendix I in U.S. Naval War College, International Law Discussions, 1903: The United States NavalWar Code of 1900, 101 (1904).3 War Department, Office of the Chief of Staff, Rules of Land Warfare (Apr. 25, 1914); War Department, Office ofthe Chief of Staff, Rules of Land Warfare (Apr. 25, 1914 with Changes Nos. 1 and 2, corrected to Apr. 15, 1917);War Department, Basic Field Manual, Volume VII, Military Law, Part Two: Rules of Land Warfare (Jan. 2, 1934);War Department Field Manual 27-10, Rules of Land Warfare (Oct. 1, 1940).4 Department of the Navy, Office of the Chief of Naval Operations, Naval Warfare Information Publication 10-2,Law of Naval Warfare (Sept. 1955), reprinted as Appendix in ROBERT W. TUCKER, THE LAW OF WAR ANDNEUTRALITY AT SEA (U.S. Naval War College International Law Studies, Volume 50, 1955).5 Department of the Army Field Manual 27-10, The Law of Land Warfare (Jul. 18, 1956 with Change 1, Jul. 15,1976).6 Department of the Army Pamphlet 27-161-2, II International Law (Oct. 23, 1962); Department of the ArmyPamphlet 27-161-1, I International Law: The Law of Peace (Sept. 1, 1979).7 Department of the Air Force Pamphlet 110-31, International Law The Conduct of Armed Conflict and AirOperations (Nov. 19, 1976).

iiiGuard have published several editions of The Commanders Handbook on the Law of NavalOperations starting in 1987 and most recently in 2007. 9 Helpful annotated supplements havealso been published. 10

In addition to these major publications, DoD components have produced many otherpublications that have supported DoD lawyers in giving advice on the law of war. For example,since 1895, the Naval War College has published its International Law Studies journal. 11 TheJudge Advocate General of the Armys Legal Center & School has published many editions of aLaw of Armed Conflict Deskbook, a Law of Armed Conflict Documentary Supplement, and anOperational Law Handbook. 12

The preparation of this manual also has benefited greatly from consulting foreign expertsand resources for example, the 2004 edition of the Manual of the Law of Armed Conflict byUnited Kingdom Ministry of Defence. 13 In this way, the preparation of this manual is nodifferent from its predecessors. For example, the 1956 Army Field manual benefited fromconsidering a draft of what ultimately became the 1958 United Kingdom law of war manual, andthe preparation of the 1914 War Department manual benefited from the Rules of Land Warfareprepared by officers of the English Army and Professor Lassa Oppenheim. 14 The law of war

8 Department of the Air Force, The Judge Advocate Generals School, Air Force Operations and the Law (3rd ed.,2014); Department of the Air Force, The Judge Advocate Generals School, Air Force Operations & the Law: AGuide for Air, Space, and Cyber Forces (2nd ed., 2009); Department of the Air Force, Office of the Judge AdvocateGeneral, Air Force Operations & the Law (1st ed., 2002).9 Department of the Navy, Naval Warfare Publication 9, The Commanders Handbook on the Law of NavalOperations (Jul. 1987); Department of the Navy, Naval Warfare Publication 1-14M / Marine Corps WarfightingPublication 5-2.1 / Commandant Publication P5800.1, The Commanders Handbook on the Law of NavalOperations (Oct. 1995); Department of the Navy, Naval Warfare Publication 1-14M / Marine Corps WarfightingPublication 5-12.1 / Commandant Publication P5800.7A, The Commanders Handbook on the Law of NavalOperations (Jul. 2007).10 Department of the Navy, Office of the Judge Advocate General, Annotated Supplement to the CommandersHandbook on the Law of Naval Operations, NWP (Rev.A)/FMFM 1-10 (1989); U.S. Naval War College, Center forNaval Warfare Studies, Oceans Law and Policy Department, Annotated Supplement to the Commanders Handbookon the Law of Naval Operations (1997).11 See, e.g., U.S. Naval War College, International Law Studies, Vol. 88, Non-International Armed Conflict in theTwenty-first Century (2012).12 See, e.g., The Judge Advocate Generals Legal Center and School, U.S. Army, International and Operational LawDepartment, Law of Armed Conflict Deskbook (2014); The Judge Advocate Generals Legal Center and School, U.S.Army, International and Operational Law Department, Law of Armed Conflict Documentary Supplement (2014);The Judge Advocate Generals Legal Center and School, U.S. Army, International and Operational LawDepartment, Operational Law Handbook (2014).13 United Kingdom Ministry of Defence, Joint Service Publication 383, The Joint Service Manual of the Law ofArmed Conflict (2004).14 See War Department, Office of the Chief of Staff, Rules of Land Warfare, Preface 7 (Apr. 25, 1914) (Especialuse was made of the Rules of Land Warfare, prepared by officers of the English Army and Prof. L. Oppenheim,LL.D., and of Prof. Nagao Arigas book, La Guerre Russo-Japonaise, which deals so carefully and thoroughly withthe laws and usages of war during one of the greatest wars of recent times.).

ivmanuals of Germany, Australia, and Canada were also helpful resources in the preparation of thismanual. 15

The preparation of this manual has also benefited from the participation of officers fromthe United Kingdoms Royal Air Force and the Australian Royal Air Force on exchangeassignments with the U.S. Air Force. In addition, military lawyers from Canada, the UnitedKingdom, New Zealand, and Australia reviewed and commented on a draft of the manual in2009 as part of review that also included comments from distinguished scholars.

Promulgating a DoD-wide manual on the law of war has been a long-standing goal ofDoD lawyers. Memoranda and meeting notes from the 1970s reflect that the international lawoffices of the Department of the Armys Office of the Judge Advocate General and theDepartment of the Navys Office of the Judge Advocate General generally agreed on a conceptplan for a new all-Services law of war manual that would be a resource for implementing the1977 Additional Protocols to the 1949 Geneva Conventions. 16 At the time, it was anticipatedthat the United States would ratify the Protocols, which has not occurred.

The origin of this manual may be traced to work in the late 1980s to update Departmentof the Army Field Manual 27-10, The Law of Land Warfare. 17 Then, in the mid-1990s, workbegan on an all-Services law of war manual to reflect the views of all DoD components. It wasenvisioned that the manual would provide not only the black letter rules, but also discussion,examples of State practice, and references to past manuals, treatises, and other documents toprovide explanation, clarification, and elaboration. The present manual has sought to realize thatvision and thus it falls within the tradition of the 1914 War Department manual, as well as the1989 and 1997 Commanders Handbook on the Law of Naval Operations, which also adoptedthis general approach of an annotated manual.

This manual is an institutional publication and reflects the views of the Department ofDefense, rather than the views of any particular person or DoD component. An effort has beenmade to reflect in this manual sound legal positions based on relevant authoritative sources of thelaw, including as developed by the DoD or the U.S. Government under such sources, and toshow in the cited sources the past practice of DoD or the United States in applying the law ofwar.

This manual primarily has been prepared by the DoD Law of War Working Group, whichis chaired by a representative of the DoD General Counsel and includes representatives of the

15 Germany, Federal Ministry of Defence, Joint Service Regulation (ZDv) 15/2, Law of Armed Conflict Manual(May 1, 2013); Australian Defence Force, Australian Defence Doctrine Publication 06.4, Law of Armed Conflict(May 11, 2006); Canada, Department of National Defence, Joint Doctrine Manual B-GJ-005-104/FP-021, Law ofArmed Conflict at the Operational and Tactical Levels (Aug. 13, 2001).16 Captain Bruce A. Harlow, JAGC, U.S. Navy, Memorandum for Mr. Waldemar H. Solf (DAJA-IA), Preparationof New Law of War Manual (Dec. 28, 1976).17 Remarks by W. Hays Parks, Customary Law and Additional Protocol I to the Geneva Conventions for Protectionof War Victims: Future Directions in Light of the U.S. Decision Not to Ratify, 81 AMERICAN SOCIETY OFINTERNATIONAL LAW PROCEEDINGS 26 (Apr. 9, 1987) (I have the job of writing the new U.S. Army Field Manual27-10, The Law of Land Warfare, so this panel is of particular interest to me.).

vJudge Advocates General of the Army, Navy, and Air Force; the Staff Judge Advocate to theCommandant of the Marine Corps; the offices of the General Counsels of the MilitaryDepartments; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. 18 This manualhas been reviewed by principals of these offices. The preparation of this manual has alsobenefited significantly from the participation of experts from the Department of State, Office ofthe Legal Adviser, and the Department of Justice, Office of Legal Counsel, although the views inthis manual do not necessarily reflect the views of those Departments or the U.S. Government asa whole.

Comments and suggestions from users of the DoD Law of War Manual are invited. Allsuch correspondence should be addressed by email to:

osd.pentagon.ogc.mbx.ia-law-of-war-manual-comments@mail.mil.

18 Department of Defense Directive 2310.01E, DoD Law of War Program 5.1.4 (May 9, 2006, Certified Current asof Feb. 22, 2011) (providing for a DoD Law of War Working Group, consisting of representatives, at the electionby each of the GC, DoD; the General Counsel of each Military Department; the Counsel to the Commandant of theMarine Corps; the Judge Advocate General of each Military Department; the Staff Judge Advocate to theCommandant of the Marine Corps; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. The DoDLaw of War Working Group shall develop and coordinate law of war initiatives and issues; support the research,preparation, review, and updating of the DoD Law of War Manual; manage other law of war matters as they arise;and provide advice to the General Counsel on legal matters covered by this Directive.).

I General Background ............................................................................................................1

1.1 Purpose and Scope of This Manual ...........................................................................1 1.2 Use of Footnotes, Sources, Cross-References, and Signals in This Manual .............2 1.3 Definition of the Law of War.....................................................................................7 1.4 Object and Nature of War ..........................................................................................15 1.5 War as a Legal Concept..........................................................................................18 1.6 Law of War Distinguished From Certain Topics .......................................................20 1.7 Treaties .......................................................................................................................27 1.8 Customary International Law ....................................................................................29 1.9 Subsidiary Means of Determining International Law ................................................34 1.10 Legal Force of the Law of War ................................................................................36 1.11 Jus ad Bellum ...........................................................................................................39

III Application of the Law of War ........................................................................................70

3.1 Introduction ................................................................................................................70 3.2 Situations to Which the Law of War Applies ............................................................73 3.3 Status of the Parties and the Law of War ...................................................................73 3.4 When Jus in Bello Rules Apply .................................................................................78 3.5 Relationship Between Jus in Bello and Jus ad Bellum ..............................................86 3.6 Reciprocity and Law of War Rules ............................................................................89 3.7 Applying Rules by Analogy.......................................................................................92 3.8 End of Hostilities and the Application of the Law of War ........................................94 3.9 Law of War Duties Also Applicable in Peace ...........................................................96

V The Conduct of Hostilities ..................................................................................................183

5.1 Introduction ................................................................................................................183 5.2 Principles for the Conduct of Hostilities ....................................................................185 5.3 Overview of Rules for the Protection of Civilians.....................................................185 5.4 Assessing Information Under the Law of War ..........................................................192 5.5 Rules on Conducting Assaults, Bombardments, and Other Attacks ..........................194 5.6 Discrimination in Conducting Attacks.......................................................................203 5.7 Military Objectives ....................................................................................................205 5.8 Combatants ................................................................................................................216 5.9 Civilians Taking a Direct Part in Hostilities ..............................................................222 5.10 Persons Placed Hors de Combat ..............................................................................232 5.11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects .............................................................................237 5.12 Proportionality in Conducting Attacks ....................................................................241 5.13 Attacks on Facilities, Works, or Installations Containing Dangerous Forces .........247 5.14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack ................................................................248

viii 5.15 Undefended Cities, Towns, and Villages .................................................................253 5.16 Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military Operations .................................................................................258 5.17 Seizure and Destruction of Enemy Property............................................................261 5.18 Protection of Cultural Property During Hostilities ..................................................269 5.19 Sieges and Encircled Areas ......................................................................................288 5.20 Starvation .................................................................................................................291 5.21 Overview of Good Faith, Perfidy, and Ruses ..........................................................294 5.22 Treachery or Perfidy Used to Kill or Wound...........................................................296 5.23 Use of Enemy Flags, Insignia, and Military Uniforms ............................................298 5.24 Improper Use of Certain Signs ................................................................................300 5.25 Ruses of War and Other Lawful Deceptions ...........................................................302 5.26 Non-Forcible Means and Methods of Warfare ........................................................307 5.27 Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed Against Their Own Country ...................................310

VII Wounded, Sick, Shipwrecked, Dead, and the Medical Services ...................................410 7.1 Introduction ................................................................................................................410 7.2 Application of the Protections of the GWS and GWS-Sea........................................413 7.3 Respect and Protection of the Wounded, Sick, and Shipwrecked .............................415

ix 7.4 Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked, and Dead .......................................................................................420 7.5 Humane Treatment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power of a Party to the Conflict ...........................................424 7.6 Accountability Information From the Enemy Military Wounded, Sick, Shipwrecked, and Dead .......................................................................................428 7.7 Treatment and Handling of Enemy Military Dead ....................................................430 7.8 Respect and Protection of Categories of Medical and Religious Personnel ..............435 7.9 Captured Medical and Religious Personnel ...............................................................438 7.10 Military Medical Units and Facilities ......................................................................444 7.11 Ground Transports of the Wounded and Sick, or of Medical Equipment ...............451 7.12 Hospital Ships, Sick-Bays in Warships, and Coastal Rescue Craft .........................453 7.13 Chartered Medical Transport Ships .........................................................................465 7.14 Military Medical Aircraft .........................................................................................466 7.15 Display of the Distinctive Emblem to Facilitate Identification ...............................470 7.16 Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers ................................................................................................................477 7.17 Civilian Hospitals and Their Personnel ...................................................................478 7.18 Land and Sea Civilian Hospital Convoys ................................................................481 7.19 Civilian Medical Aircraft .........................................................................................482 7.20 AP I Provisions on the Wounded, Sick, and Shipwrecked ......................................483

11.1 Introduction ..............................................................................................................735 11.2 When Military Occupation Law Applies .................................................................744 11.3 End of Occupation and Duration of GC Obligations ...............................................750 11.4 Legal Position of the Occupying Power ..................................................................752 11.5 Duty of the Occupying Power to Ensure Public Order and Safety ..........................754 11.6 Protection of the Population of an Occupied Territory............................................756 11.7 Authority of the Occupying Power Over Inhabitants ..............................................758 11.8 Administration of Occupied Territory .....................................................................761

XIV Air and Space Warfare ..................................................................................................900

14.1 Introduction ..............................................................................................................900 14.2 Legal Boundaries of Airspace ..................................................................................904 14.3 Aircraft Status ..........................................................................................................909 14.4 Status of Aircrew on Military Aircraft.....................................................................912 14.5 Measures Short of Attack: Interception, Diversion, and Capture ...........................914 14.6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities ...............916 14.7 Airspace Zones.........................................................................................................916 14.8 Attacks Against Military Objectives in the Air .......................................................917 14.9 Air Attacks Against Military Objectives on the Ground .........................................920 14.10 International Law And Warfare in Outer Space ....................................................922

XV The Law of Neutrality......................................................................................................929

17.1 Introduction ..............................................................................................................1010 17.2 Application of International Law to NIACs ............................................................1015 17.3 Special Agreements Between Parties to the Conflict ..............................................1023 17.4 A States Use of Its Domestic Law and NIAC ........................................................1025 17.5 Principle of Distinction in NIAC .............................................................................1029 17.6 Respect and Humane Treatment of Persons Taking No Active Part in Hostilities in NIAC ..............................................................................................1032 17.7 Rules on Conducting Attacks in NIAC ....................................................................1033 17.8 Impartial Humanitarian Organizations and Humanitarian Activities During NIAC ....................................................................................................................1035 17.9 Protection of the Civilian Population in NIAC ........................................................1035 17.10 Protection of Children in NIAC .............................................................................1037 17.11 Protection of Cultural Property in NIAC ...............................................................1038 17.12 Use of Captured or Surrendered Enemy Personnel in NIAC ................................1039 17.13 Weapons in NIAC ..................................................................................................1041 17.14 Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC ....................1042 17.15 Protection of Medical and Religious Personnel and Medical Transports in NIAC ....................................................................................................................1044 17.16 Display of the Distinctive Emblem in NIAC .........................................................1045 17.17 Detention in NIAC .................................................................................................1046 17.18 Non-Intervention and Neutral Duties in NIAC......................................................1047

XVIII Implementation and Enforcement of the Law of War .............................................1052

18.1 Introduction ..............................................................................................................1052 18.2 Prudential Reasons Supporting the Implementation and Enforcement of the Law of War ..........................................................................................................1055 18.3 Duties of Individual Members of the Armed Forces ...............................................1057 18.4 Commanders Duty to Implement and Enforce the Law of War .............................1059 18.5 Role of Judge Advocates and Legal Advisers .........................................................1061 18.6 Dissemination, Study, and Other Measures to Facilitate Understanding of Duties Under the Law of War ..............................................................................1063 18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law of War ..................................................................................................................1066 18.8 Considering Law of War Obligations in the Planning of Military Operations ........1069 18.9 States Obligations With Respect to Violations of the Law of War ........................1070 18.10 Methods for Responding to Violations of the Law of War by the Enemy ............1077

xv 18.11 Protests and Demands to the Offending Party .......................................................1078 18.12 U.N. Security Council and Enforcement of the Law of War .................................1078 18.13 National Investigations of Alleged Violations of the Law of War ........................1082 18.14 International Mechanisms to Investigate Alleged Law of War Violations............1084 18.15 Protecting Power and Other Neutral Intermediaries ..............................................1085 18.16 Compensation for Violations of the Law of War...................................................1089 18.17 Retorsion ................................................................................................................1092 18.18 Reprisals .................................................................................................................1093 18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law of War ..................................................................................................................1100 18.20 Prosecution in International and Hybrid Courts ....................................................1108 18.21 Limits on the Punishment of Individuals Under the Law of War ..........................1113 18.22 Principles of Individual Criminal Responsibility for Crimes Under International Law .................................................................................................1118 18.23 Theories of Individual Criminal Liability ..............................................................1122

XIX Documentary Appendix Notes on Treaties and Other Relevant Documents............1131

To make the manual easier to read, the use of abbreviations has often been avoided,especially in the main text. Nonetheless, the following abbreviations of the titles of documentshave been used for frequently cited documents.

Abbreviation Long Form

1899 Hague II Convention with Respect to the Laws and Customs of War on Land, Jul. 29, 1899, 32 Stat. 18031899 Hague II Reg. Regulations Respecting the Laws and Customs of War on Land, annexed to Convention with Respect to the Laws and Customs of War on Land, Jul. 29, 1899, 32 Stat. 1803, 18111909 Declaration of London Declaration Concerning the Laws of Maritime War, Feb. 26, 1909, reprinted in James Brown Scott, The Declaration of London, February 26, 1909: A Collection of Official Papers and Documents Relating to the International Naval Conference Held in London, December, 1908February, 1909 (1919)1914 Rules of Land Warfare War Department, Office of the Chief of Staff, Rules of Land Warfare (Apr. 25, 1914)1925 Geneva Gas and Protocol for the Prohibition of the Use in War ofBacteriological Protocol Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, Jun. 17, 1925, 94 LNTS 651928 Pan American Maritime Pan American Maritime Neutrality Convention, Feb. 20,Neutrality Convention 1928, 47 Stat. 19891929 GPW Geneva Convention Relative to the Treatment of Prisoners of War, Jul. 27, 1929, 47 Stat. 20211929 GWS Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, Jul. 27, 1929, 47 Stat. 20741940 Rules of Land Warfare War Department, Field Manual 27-10, Rules of Land Warfare (1940)1944 Chicago Convention Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 11801954 Hague Cultural Property Convention for the Protection of Cultural Property in theConvention Event of Armed Conflict, 249 UNTS 2401955 NWIP 10-2 Department of the Navy, Office of the Chief of Naval Operations, Naval Warfare Information Publication 10-2, Law of Naval Warfare (Sept. 1955), reprinted as Appendix in Robert W. Tucker, The Law of War and Neutrality at Sea (U.S. Naval War College International Law Studies, Volume 50, 1955)1956 FM 27-10 (Change No. 1 Department of the Army Field Manual 27-10, The Law of1976) Land Warfare (Jul. 18, 1956 with Change 1, Jul. 15, 1976)

xviiAbbreviation Long Form1958 UK Manual United Kingdom War Office, Manual of Military Law, Part III: The Law of War on Land (1958)1976 Air Force Pamphlet 110-31 Department of the Air Force Pamphlet 110-31, International Law The Conduct of Armed Conflict and Air Operations (Nov. 19, 1976)1989 NWP 9 Department of the Navy, Office of the Judge Advocate General, Annotated Supplement to the Commanders Handbook on the Law of Naval Operations, NWP (Rev.A)/FMFM 1-10 (1989)1997 Multi-Service Detention Army Regulation 190-8 / Office of the Chief of NavalRegulation Operations Instruction 3461.6 / Air Force Joint Instruction 31-304 / Marine Corps Order 3461.1, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (Oct. 1, 1997)1997 NWP 9 U.S. Naval War College, Center for Naval Warfare Studies, Oceans Law and Policy Department, Annotated Supplement to the Commanders Handbook on the Law of Naval Operations (1997)2001 Canadian Manual Canada, Department of National Defence, Joint Doctrine Manual B-GJ-005-104/FP-021, Law of Armed Conflict at the Operational and Tactical Levels (Aug. 13, 2001)2004 UK Manual United Kingdom Ministry of Defence, Joint Service Publication 383, The Joint Service Manual of the Law of Armed Conflict (2004)2006 Australian Manual Australian Defence Force, Australian Defence Doctrine Publication 06.4, Law of Armed Conflict (May 11, 2006)2007 NWP 1-14M Department of the Navy, Naval Warfare Publication 1-14M / Marine Corps Warfighting Publication 5-12.1 / Commandant Publication P5800.7A, The Commanders Handbook on the Law of Naval Operations (Jul. 2007)2013 German Manual Germany, Federal Ministry of Defence, Joint Service Regulation (ZDv) 15/2, Law of Armed Conflict Manual (May 1, 2013)AJIL American Journal of International LawAP I Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Jun. 8, 1977, 1125 UNTS 3AP II Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Jun. 8, 1977, 1125 UNTS 609

xviiiAbbreviation Long FormAP III Protocol (III) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005, 2404 UNTS 1Appendix to 1985 CJCS Memo on Appendix to John W. Vessey, Jr., Chairman, Joint Chiefs ofAP I Staff, Review of the 1977 First Additional Protocol to the Geneva Conventions of 1949, May 3, 1985.Bevans Charles I. Bevans, Assistant Legal Adviser, Department of State, Treaties and Other International Agreements of the United States of America, 1776-1949 (13 Volumes, 1968- 1976)Biological Weapons Convention Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 1015 UNTS 163Bothe, Partsch, & Solf, New Rules Michael Bothe, Karl Josef Partsch, & Waldemar A. Solf, New Rules for Victims of Armed Conflicts (1982)CCW Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 UNTS 137CCW Amended Amendment to Article I of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Dec. 21, 2001, 2260 UNTS 82CCW Amended Mines Protocol Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as Amended on May 3, 1996, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, May 3, 1996, 2048 UNTS 93CCW Protocol I Protocol (I) on Non-Detectable Fragments, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 UNTS 137CCW Protocol III on Incendiary Protocol (III) on Prohibitions or Restrictions on the Use ofWeapons Incendiary Weapons, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 UNTS 137

xixAbbreviation Long FormCCW Protocol IV on Blinding Protocol (IV) on Blinding Laser Weapons, Annexed to theLaser Weapons Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 13, 1995, 1380 UNTS 163CCW Protocol V on Explosive Protocol (V) on Explosive Remnants of War, Annexed toRemnants of War the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Nov. 28, 2003, 2399 UNTS 100Chairmans Commentary to the The Copenhagen Process on the Handling of Detainees inCopenhagen Process: Principles International Military Operations, Chairmans Commentaryand Guidelines to the Copenhagen Process: Principles and Guidelines (Denmark, Ministry of Foreign Affairs, Oct. 19, 2012)Chemical Weapons Convention Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 1974 UNTS 317Copenhagen Process: Principles The Copenhagen Process on the Handling of Detainees inand Guidelines International Military Operations, The Copenhagen Process: Principles and Guidelines (Denmark, Ministry of Foreign Affairs, Oct. 19, 2012)Digest of United States Practice in Digest of United States Practice in International LawInternational Law (Department of State, Office of the Legal Adviser)ENMOD Convention Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, 1108 UNTS 151Final Record of 1949 Geneva Diplomatic Conference of Geneva, Final Record of theDiplomatic Conference Diplomatic Conference of Geneva of 1949 (Switzerland, Federal Political Department, 1949)Final Report on the Persian Gulf Department of Defense, Conduct of the Persian Gulf War:War Final Report to Congress (1992)GC Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 UNTS 287GC Commentary Jean S. Pictet, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary (International Committee of the Red Cross, 1958)GPW Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 UNTS 135GPW Commentary Jean S. Pictet, Geneva Convention Relative to the Treatment of Prisoners of War: Commentary (International Committee of the Red Cross, 1960)Greenspan, Modern Law of Land Morris Greenspan, The Modern Law of Land WarfareWarfare (1959)

xxAbbreviation Long FormGrotius, Law of War & Peace Hugo Grotius, The Law of War and Peace: De Jure Belli ac Pacis Libri Tres (translated by Francis W. Kelsey, 1925)GWS Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 UNTS 31GWS Commentary Jean S. Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (International Committee of the Red Cross, 1952)GWS-Sea Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 UNTS 85GWS-Sea Commentary Jean S. Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea: Commentary (International Committee of the Red Cross, 1960)Hague IV Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277Hague IV Reg. Regulations Respecting the Laws and Customs of War on Land, Annex to Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2295Hague IX Convention (IX) Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 Stat. 2351Hague V Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 Stat. 2310Hague VIII Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332Hague X Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, Oct. 18, 1907, 36 Stat. 2371Hague XI Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, Oct. 18, 1907, 36 Stat. 2396Hague XIII Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415ICJ Statute Statute of the International Court of Justice (Annex to the Charter of the United Nations), Jun. 26, 1945, 59 Stat. 1055ICRC AP Commentary Jean S. Pictet et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross, 1987)

xxiAbbreviation Long FormICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994ICTR Statute Statute of the ICTR, Annex to U.N. Security Council Resolution 955 (1994), U.N. Doc. S/RES/955(1994) (Nov. 8, 1994).ICTY International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991ICTY Statute Statute of the ICTY, Annex to Report of the Secretary- General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 (May 3, 1993), adopted by U.N. Security Council Resolution 827 (1993), U.N. Doc. S/RES/827(1993) (May 25, 1993).J.A.G.S. Text No. 11, Law of U.S. Army, The Judge Advocate Generals School TextBelligerent Occupation No. 11, Law of Belligerent Occupation (Jun. 1, 1944, reissued Jul. 2, 1945)Lauterpacht, II Oppenheims Lassa Oppenheim, International Law, Volume II: Disputes,International Law War and Neutrality (edited by H. Lauterpacht, 7th ed., 1952)Levie, Documents on POWs Howard S. Levie, Documents on Prisoners of War (U.S. Naval War College International Law Studies, Volume 60, 1979)Levie, POWs Howard Levie, Prisoners of War in International Armed Conflicts (U.S. Naval War College International Law Studies, Volume 59, 1978)Lieber Code E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armies of the United States in the Field, Apr. 24, 1863, reprinted in Instructions for the Government of Armies of the United States in the Field (Government Printing Office, 1898).LNTS League of Nations Treaty SeriesLOS Convention United Nations Convention on the Law of the Sea, Dec.10, 1982, 1833 UNTS 396.Message from the President Message from the President of the United StatesTransmitting AP II Transmitting the Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Noninternational Armed Conflicts, Concluded at Geneva on June 10, 1977, Treaty Doc. 100-2 (1987)

xxiiAbbreviation Long FormMessage from the President Message from the President of the United StatesTransmitting AP III, CCW transmitting Protocol Additional to the GenevaAmended Article 1, and CCW Conventions of 12 August 1949, and Relating to theProtocol V on Explosive Adoption of an Additional Distinctive Emblem (TheRemnants of War Geneva Protocol III), Adopted at Geneva on December 8, 2005, and Signed by the United States on that date; The Amendment to Article 1 of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (The CCW Amendment); and The CCW Protocol Explosive Remnants of War (The CCW Protocol V), Treaty Doc. 109-10 (2006)Message from the President Message from the President of the United StatesTransmitting LOS Convention transmitting the United Nations Convention on the Law of the Sea, with Annexes, and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, with Annex, Adopted at New York on July 28, 1994 and signed by the United States, Subject to Ratification on July 29, 1994, Treaty Doc. 103-09 (1994)Message from the President Message From the President of the United StatesTransmitting the 1925 Geneva Gas Transmitting The Protocol for the Prohibition of the Use inand Bacteriological Protocol War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, Signed at Geneva June 17, 1925, Executive J (1970)Message from the President Message from the President of the United StatesTransmitting the 1954 Hague Transmitting the Hague Convention for the Protection ofCultural Property Convention Cultural Property in the Event of Armed Conflict (the Convention) and, for Accession, the Hague Protocol, Concluded on May 14, 1954, and Entered into Force on August 7, 1956 with Accompanying Report from the Department of State on the Convention and the Hague Protocol, Treaty Doc. 106-1 (1999)

xxiiiAbbreviation Long FormMessage from the President Message From the President of the United StatesTransmitting the CCW Amended Transmitting Protocols to the 1980 Convention onMines Protocol, Protocol III on Prohibitions or Restrictions on the use of CertainIncendiary Weapons, and Protocol Conventional Weapons which may be deemed to beIV on Blinding Laser Weapons excessively injurious or to Have Indiscriminate effects: The Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps or other devices (Protocol II or the Amended Mines Protocol); The Protocol On Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III or the Incendiary Weapons Protocol); and the Protocol on Blinding Laser Weapons (Protocol IV), Treaty Doc. 105-1 (1997)Message from the President Message from the President of the United StatesTransmitting the Chemical Transmitting the Convention on the Prohibition ofWeapons Convention Development, Production, Stockpiling, and use of Chemical Weapons and on their Destruction, Opened for Signature and Signed by the United States at Paris on Jan. 13, 1993, Treaty Doc. 103-21 (1993)Message from the President Message from the President of the United StatesTransmitting the VCLT Transmitting the Vienna Convention on the Law of Treaties Signed for the United States on April 24, 1970, Executive L (1971)Moores Digest John Bassett Moore, A Digest of International Law (8 Volumes, 1906)Official Records of the CDDH Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 1974-1977 (16 Volumes, 1978)Outer Space Treaty Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 UNTS 205Public Papers of the Presidents Public Papers of the Presidents of the United States (National Archives and Records Administration, Office of the Federal Register)Regulations for the Execution of Regulations for the Execution of the Convention for thethe 1954 Hague Cultural Property Protection of Cultural Property in the Event of ArmedConvention Conflict, Annexed to the Hague Cultural Property Convention, May 14, 1954, 249 UNTS 270Roerich Pact Treaty between the United States of America and other American Republics on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 1935, 49 Stat. 3267Rome Statute Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 90

xxivAbbreviation Long FormSpaight, Air Power and War James Maloney Spaight, Air Power and War Rights (3rdRights ed., 1947)Spaight, War Rights on Land James Maloney Spaight, War Rights on Land (1911)Stat. United States Statutes at LargeTechnical Annex to CCW Technical Annex to Protocol (II) on Prohibitions orAmended Mines Protocol Restrictions on the Use of Mines, Booby-Traps and Other Devices, as Amended on May 3, 1996, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, May 3, 1996, 2048 UNTS 144Technical Annex to CCW Protocol Technical Annex to Protocol (V) on Explosive Remnants ofV On Explosive Remnants of War War, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Nov. 28, 2003, 2399 UNTS 132Trial of the Major War Criminals Trial of the Major War Criminals Before the InternationalBefore the IMT Military Tribunal (42 Volumes, 1947-1949)Trials of War Criminals Before the Trials of War Criminals Before the Nuernberg MilitaryNMT Tribunals Under Control Council Law No. 10 (15 Volumes, 1949-1953)Tucker, The Law of War and Robert W. Tucker, The Law of War and Neutrality at SeaNeutrality at Sea (U.S. Naval War College International Law Studies, Volume 50, 1955)U.N. Charter Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031U.N. Law Reports United Nations War Crimes Commission, Law Reports of the Trials of War Criminals (15 Volumes 1947-1949)U.S. Response to ICRC CIHL John B. Bellinger, III, Legal Adviser, Department of State,Study & William J. Haynes II, General Counsel, Department of Defense, Letter to Dr. Jacob Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Humanitarian Law Study, Nov. 3, 2006, reprinted in 46 International Legal Materials 514 (2007).U.S.C. United States Code (as of the date of publication of this manual)UNTS United Nations Treaty SeriesVattel, The Law of Nations Emer de Vattel, The Law of Nations, or the Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (translated by Charles Fenwick, 1916)VCLT Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331

xxvAbbreviation Long FormVon Glahn, The Occupation of Gerhard von Glahn, The Occupation of Enemy TerritoryEnemy Territory (1957)Whitemans Digest Marjorie M. Whiteman, Assistant Legal Adviser, Department of State, Digest of International Law (15 Volumes, 1963-1973)Winthrop, Military Law & William Winthrop, Military Law and Precedents (2nd. ed.,Precedents 1920)

xxvi I General Background

Chapter Contents

1.1 Purpose and Scope of This Manual

1.2 Use of Footnotes, Sources, Cross-References, and Signals in This Manual 1.3 Definition of the Law of War 1.4 Object and Nature of War 1.5 War as a Legal Concept 1.6 Law of War Distinguished From Certain Topics 1.7 Treaties 1.8 Customary International Law 1.9 Subsidiary Means of Determining International Law 1.10 Legal Force of the Law of War 1.11 Jus ad Bellum

1.1 PURPOSE AND SCOPE OF THIS MANUAL

1.1.1 Purpose. The purpose of this manual is to provide information on the law of war toDoD personnel responsible for implementing the law of war and executing military operations. 1

This manual represents the legal views of the Department of Defense. This manual doesnot, however, preclude the Department from subsequently changing its interpretation of the law.Although the preparation of this manual has benefited from the participation of lawyers from theDepartment of State and the Department of Justice, this manual does not necessarily reflect theviews of any other department or agency of the U.S. Government or the views of the U.S.Government as a whole.

This manual is not intended to, and does not, create any right or benefit, substantive orprocedural, enforceable at law or in equity against the United States, its departments, agencies, orother entities, its officers or employees, or any other person.

1.1.2 Scope. This manual is not a definitive explanation of all law of war issues. Thismanual focuses on jus in bello law relating to the conduct of hostilities and the protection ofwar victims.

This manual seeks to address the law of war that is applicable to the United States,including treaties to which the United States is a Party, and applicable customary internationallaw. It provides legal rules, principles, and discussion, particularly with respect to DoD practice.Although the views of other States may be referenced in this manual, it is not a purpose of thismanual to describe the views of other States, which may differ from views expressed in thismanual.

1 Refer to 1.3 (Definition of the Law of War).

1 This manual is not a substitute for the careful practice of law. As specific legal issuesarise, legal advisers should consider relevant legal and policy materials (e.g., treaty provisions,judicial decisions, past U.S. practice, regulations, and doctrine), and should apply the law to thespecific factual circumstances.

This manual is intended to be a description of the law as of the date of the manualspromulgation. In this vein, much of this manual has been written in the past tense to help ensurethat the text remains accurate, even after subsequent developments have occurred. Every efforthas been made to ensure the accuracy of the manual, but it must be read in the light of laterdevelopments in the law.

1.2 USE OF FOOTNOTES, SOURCES, CROSS-REFERENCES, AND SIGNALS IN THIS MANUAL

1.2.1 Use of Footnotes in This Manual. This manual uses footnotes to provide sources orcross-references to other sections of the manual in order to clarify, elaborate on, or support themain text.

An effort has been made to avoid introducing discussion in the footnotes that addressesdifferent propositions than those discussed in the main text. Although providing tangentialinformation in footnotes is common in academic legal writing, this practice has been avoided tothe extent possible for principally two reasons. First, it was desirable that this manuals maintext convey as much information as possible without the reader needing to read the footnotes.For example, it was desirable to avoid the possibility that a reader might misunderstand a legalrule addressed in the main text because a notable exception to that rule was addressed only in afootnote accompanying the text. Second, tangential discussion on a given issue in footnoteswould have made it much more difficult to keep the manuals treatment of that issue consistentfrom section to section and to allow the reader to find all the relevant information about a singletopic. Thus, tangential discussion in footnotes has been avoided, to the extent possible, in favorof cross-references to the appropriate section of the manual that addresses that topic in moredetail.

1.2.2 Use of Sources in This Manual. This manual cites sources in the footnotes tosupport or elaborate upon propositions in the main text. These sources are cited in the footnotesto help practitioners research particular topics discussed in the main text. Reviewing the citedsources in their entirety may provide additional contextual information, especially where sourcesare only partially quoted in the footnotes.

1.2.2.1 Selection of Sources. The sources cited in the footnotes have been chosenfor a variety of reasons. For example, a source may contain a particularly helpful explanation orillustration. A source may have been chosen to illustrate U.S. practice or legal interpretation. Asource may have been selected because its author was a particularly influential and respectedinternational lawyer. For example, the 1956 Department of Army Field Manual 27-10, The Lawof Land Warfare, has been a source of legal guidance for the U.S. armed forces for more than 50years, and was published in connection with the U.S. ratification of the 1949 GenevaConventions. One of the persons who helped prepare the 1956 manual was Richard Baxter, ahighly respected DoD lawyer, who later became a judge on the International Court of Justice.

2 Citation to a particular source should not be interpreted to mean that the cited sourcerepresents an official DoD position, or to be an endorsement of the source in its entirety. Forexample, parts of a source, such as an opinion by the International Court of Justice or acommentary published by the International Committee of the Red Cross, may reflect the DoDlegal interpretation, while other parts of the source may not. Similarly, the citation of thejurisprudence of the Inter-American Commission on Human Rights should not be understood toindicate that the United States has accepted the competence of the Inter-American Commissionon Human Rights to apply the law of war. 2

1.2.2.2 Use of Older Sources. Older sources are sometimes cited: (1) becausethat source is particularly influential; (2) to demonstrate the origin of a legal proposition; or (3)to illustrate that a particular rule or formulation has a long history.

The citation of an older source should not necessarily be interpreted as an endorsement

that every aspect of that source remains current law. For example, the Lieber Code is acanonical law of war document for the United States, but parts of it no longer reflect currentlaw. 3 Moreover, an older document produced by a State does not necessarily reflect its currentlegal views. For example, the 1958 UK Manual, although a particularly influential law of warmanual prepared by distinguished experts Hersch Lauterpacht and Gerald Draper, has beensuperseded by subsequent UK Manuals, which reflect more recent developments in the law forthe United Kingdom (e.g., its ratification of AP I).

1.2.2.3 Quotes Provided From Sources. Quotes from sources are sometimesgiven in parentheticals within footnotes. These parentheticals are provided to help practitioners,such as by facilitating comparison between the main text of the manual and the language used inthe sources. Every effort has been made to quote sources accurately. Practitioners, however,should verify quotations using the original source.

Certain formatting rules have been followed for quoted material. Two spaces have beenplaced after each period ending a sentence. Footnote numbers and carriage returns have beenomitted from quoted text. Otherwise, quotes have not been changed unless noted through the useof ellipses, brackets, or parentheticals after the quotes indicating the changes made.

1.2.2.4 Citation of Policies and Regulations. Policies and regulations of the U.S.Government or particular DoD components are sometimes cited as examples of past practice.

This manual, however, seeks primarily to address the law and not to address applicableU.S. Government or DoD policies or regulations. Many policies and regulations are notaddressed in this manual, and the discussion of some policies, where relevant, should not beunderstood to indicate that other pertinent policies or regulations do not exist. Moreover,

2 See, e.g., U.S. Additional Response to the Request for Precautionary MeasuresDetention of Enemy Combatantsat Guantanamo Bay, Cuba, Inter-American Commission on Human Rights, Jul. 15, 2002, 2002 DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 1008, 1009 (Put simply, the Commissions jurisdiction does not includethe application of the law of armed conflict, the lex specialis governing the status and treatment of persons detainedduring armed conflict.).3 Refer to 19.3 (Lieber Code).

3policies and regulations are constantly updated, so practitioners are advised to ascertain whethermore recent versions of cited policies and regulations have been issued.

In some cases, cancelled issuances or superseded policies or regulations are cited to showthe past practice, and, at times, a series of issuances are cited to illustrate a continuity in practice.

Policies and regulations often exceed the requirements of applicable law, and the merecitation of a policy or regulation in this manual should not be understood to reflect the view thatthe policy or regulations requirements have been promulgated out of a sense of legal obligationfor the purposes of assessing customary international law or otherwise intending to reflect legalrequirements.

1.2.2.5 Citation Forms. An effort has been made to make citations formsconsistent throughout the manual, and to provide enough information about each cited source toreflect its significance and to enable readers to find it. 4 This manual has not strictly adhered toan established system of citation. Although certain citation systems were consulted,modifications were made as deemed appropriate for this type of resource, to make the citationforms straightforward and simple and relatively easy for readers to understand. In regard toabbreviations, for example, this manual generally does not abbreviate the names of academicjournals. Moreover, it is hoped that the quotations from the cited sources that have beenincluded in footnotes will help readers find the cited sources electronically.

1.2.3 Use of Cross-References in This Manual. This manual uses cross-references in thefootnotes to point the reader to other sections of the manual containing relevant discussion of aparticular topic. In particular, an effort has been made to use cross-references rather than torepeat discussion of a recurring issue or duplicate citation of legal sources. In sections in whicha law of war rule is only mentioned tangentially or as an example, a cross-reference is used todirect the reader to the section of the manual in which a more in-depth discussion of that rule andsupporting sources are provided. 5

Cross-references are linked to enable the reader to access the referenced section quickly.

4 Cf. Richard A. Posner, The Bluebook Blues (reviewing Harvard Law Review Association, The Bluebook: AUniform System of Citation (19th ed., 2010)), THE YALE LAW JOURNAL 850, 852 (2011) (A system of citationforms has basically two functions: to provide enough information about a reference to give the reader a general ideaof its significance and whether its worth looking up, and to enable the reader to find the reference if he decides thathe does want to look it up. In Goodbye to the Bluebook I suggested four principles to guide the design of such asystem: to spare the writer or editor from having to think about citation form, to economize on space and thereader's time, to provide information to the reader, and to minimize distraction.).5 Refer to 1.2.1 (Use of Footnotes in This Manual).

4 1.2.4 Use of Signals in This Manual. This manual uses signals to introduce the sourcesand cross-references in the footnotes. The table below identifies the signals used in this manual,describes their function, and provides examples of their use.

Signal Function and Examples of Use

[no Directly states the propositionsignal] If a person joins a leve en masse, he or she may be held as a POW even if he or she actually took no part in fighting.1

1 1958 UK MANUAL 100 (If it is shown that they joined the leve en masse, but took no part in the defence, they may be held as prisoners of war.).

Identifies the source of a quotation

As the Supreme Court has explained: Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces.2

2 Ex parte Quirin, 317 U.S. 1, 31 (1942).

Identifies an authority referred to in the text

There are additional provisions of the CCW Amended Mines Protocol addressing international exchanges of information and cooperation in this respect.3

3 CCW AMENDED MINES PROTOCOL art. 11.See Clearly supports the proposition but does not directly state it

In addition, observers on military reconnaissance aircraft have not been regarded as

acting clandestinely or under false pretenses.4 4 See HAGUE IV REG. art. 29 (Persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory are not considered spies.).See also Elaborates on the proposition

This means that a combatants killing, wounding, or other warlike acts are not individual crimes or offenses.5 5 LIEBER CODE art. 57. See also WINTHROP, MILITARY LAW & PRECEDENTS 778 (The State is represented in active war by its contending army, and the laws of war justify the killing or disabling of members of the one army by those of the other in battle or hostile operations.).

5Signal Function and Examples of UseCf. Supports the proposition by analogy, i.e., discusses a different proposition that is sufficiently similar to support the original proposition

A person must engage in acts of espionage in the zone of operations of a belligerent to be

considered a spy. Zone of operations has been construed broadly to include areas supporting the war effort.6 6 Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our Armed Forces.).Refer to Refers to another manual section that supports or elaborates on the proposition

Certain categories of persons are not members of the armed forces, but are nonetheless authorized to support the armed forces in the fighting: persons authorized to accompany the armed forces, but who are not members thereof;7 7 Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).Compare Refers to another manual section that is analogous to the proposition

Persons authorized to accompany the armed forces who provide security against criminal elements generally would not be viewed as taking a direct part in hostilities (and do not forfeit their protection from being made the object of attack).269 269 Compare 4.23.1 (Police as Civilians).Consider Identifies a treaty that relates to the proposition but to which the United States is not a Party (e.g., AP I)

Under international law, every treaty in force is binding upon the Parties to it and must be performed by them in good faith.10 10 Consider VCLT art. 26 (Every treaty in force is binding upon the parties to it and must be performed by them in good faith.).For Illustrates the proposition with an example drawn from historical practiceexample, Adjusting the timing of an attack may reduce the risk of incidental harm. For example, attacking a military objective when civilians are less likely to be present may be appropriate.11 11 For example, FINAL REPORT ON THE PERSIAN GULF WAR 100 (noting that during Operation DESERT STORM attacks on known dual (i.e., military and civilian) use facilities normally were scheduled at night, because fewer people would be inside or on the streets outside.).

6Signal Function and Examples of Usee.g., Added to any of the other signals when the cited authority is one of several authorities (some of which remain uncited) that stand for the same proposition

International humanitarian law is an alternative term for the law of war that may be understood to have the same substantive meaning as the law of war.12 12 See, e.g., Overview of the Amendment to the Convention on the Physical Protection of Nuclear Material, 6, Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007, MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING AMENDMENT TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL (THE AMENDMENT). A CONFERENCE OF STATES PARTIES TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL, ADOPTED ON OCTOBER 28, 1979, ADOPTED THE AMENDMENT ON JULY 8, 2005, AT THE INTERNATIONAL ATOMIC ENERGY AGENCY IN VIENNA, TREATY DOC. 110-6, 6 (2007) ((2) The United States of America understands that the term international humanitarian law in Paragraph 5 of the Amendment (Article 2 of the Convention on the Physical Protection of Nuclear Material, as amended) has the same substantive meaning as the law of war.).

1.3 DEFINITION OF THE LAW OF WAR

For the purposes of this manual, the law of war is that part of international law thatregulates the resort to armed force; the conduct of hostilities and the protection of war victims inboth international and non-international armed conflict; belligerent occupation; and therelationships between belligerent, neutral, and non-belligerent States. 6

For the purposes of this manual, the law of war comprises treaties and customaryinternational law applicable to the United States. 7

1.3.1 Law of War Notes on Terminology.

1.3.1.1 Different Definitions of the Law of War. The law of war may be definedslightly differently in other publications. For example, DoD issuances have defined the law ofwar more narrowly than the definition discussed in this section (e.g., by omitting reference tothat part of international law that regulates the resort to armed force). 8

6 Refer to 3.2 (Situations to Which the Law of War Applies).7 Refer to 1.7 (Treaties); 1.8 (Customary International Law).8 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, 14 (Aug. 19, 2014) (law of war. The part ofinternational law that regulates the conduct of hostilities and the protection of victims of armed conflict in bothinternational and non-international armed conflict and occupation, and that prescribes the rights and duties ofneutral, non-belligerent, and belligerent states. It is often called the law of armed conflict or internationalhumanitarian law, and is specifically intended to address the circumstances of armed conflict. It encompasses allinternational law applicable to the conduct of military operations in armed conflicts that is binding on the UnitedStates or its individual citizens, including treaties and international agreements to which the United States is a party(e.g., the Geneva Conventions of 1949), and applicable customary international law.); DOD DIRECTIVE 2311.01E,DoD Law of War Program, 3.1 (May 9, 2006, Certified Current as of Feb. 22, 2011) (Law of War. That part of

7 1.3.1.2 Law of War versus International Humanitarian Law and Law of ArmedConflict. The law of war is often called the law of armed conflict. Both terms can be found inDoD directives and training materials. International humanitarian law is an alternative term forthe law of war that may be understood to have the same substantive meaning as the law of war. 9In other cases, international humanitarian law is understood more narrowly than the law of war(e.g., by understanding international humanitarian law not to include the law of neutrality). 10

1.3.2 The Law of Wars Relationship to Other Bodies of Law. An issue that oftenconfronts law of war practitioners is the relationship of the law of war to other bodies of law,especially when rules in those bodies of law may appear to conflict with rules reflected in thelaw of war. These apparent conflicts are often resolved by considering the principle that the lawof war is the lex specialis governing armed conflict. 11 How a law of war rule relates to aparticular rule that is not grounded in the law of war may depend on the specific legal rule inquestion.

In general, the law of war may relate to other bodies of law through: (1) law of war rulessuperseding rules in other bodies of law with respect to armed conflict; (2) construing the rules inother bodies of law to avoid conflict with law of war rules; (3) law of war rules informing thecontent of general standards in other bodies of law, should such standards be construed to apply

international law that regulates the conduct of armed hostilities. It is often called the law of armed conflict. Thelaw of war encompasses all international law for the conduct of hostilities binding on the United States or itsindividual citizens, including treaties and international agreements to which the United States is a party, andapplicable customary international law.).9 See, e.g., Overview of the Amendment to the Convention on the Physical Protection of Nuclear Material, 6,Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007, MESSAGE FROM THE PRESIDENT OF THE UNITEDSTATES TRANSMITTING AMENDMENT TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL(THE AMENDMENT). A CONFERENCE OF STATES PARTIES TO THE CONVENTION ON THE PHYSICAL PROTECTION OFNUCLEAR MATERIAL, ADOPTED ON OCTOBER 28, 1979, ADOPTED THE AMENDMENT ON JULY 8, 2005, AT THEINTERNATIONAL ATOMIC ENERGY AGENCY IN VIENNA, TREATY DOC. 110-6, 6 (2007) ((2) The United States ofAmerica understands that the term international humanitarian law in Paragraph 5 of the Amendment (Article 2 ofthe Convention on the Physical Protection of Nuclear Material, as amended) has the same substantive meaning asthe law of war.); FRITS KALSHOVEN & LIESBETH ZEGVELD, CONSTRAINTS ON THE WAGING OF WAR: ANINTRODUCTION TO INTERNATIONAL HUMANITARIAN LAW 11 (International Committee of the Red Cross, 3rd ed.,2001) (The law of war nowadays is often referred to by a phrase better suited to express its object and purpose,such as international humanitarian law applicable in armed conflict or humanitarian law we shall be using theseterms interchangeably, as we do with war and armed conflict.).10 Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OFHUMANITARIAN LAW IN ARMED CONFLICTS 9 (102) (1999) (The term international humanitarian law is ofrelatively recent origin and does not appear in the Geneva Conventions of 1949. International humanitarian lawthus includes most of what used to be known as the laws of war, although strictly speaking some parts of those laws,such as the law of neutrality, are not included since their primary purpose is not humanitarian.).11 See, e.g., Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of theU.N. Committee Against Torture, Nov. 3 28, 2014, Nov. 12, 2014 (noting that the law of armed conflict is thecontrolling body of law with respect to the conduct of hostilities and the protection of war victims,); U.S.Delegation to U.N. General Assembly Third Committee, Statement Clarifying Legal Points of Importance, 2004DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 331 (Third, with respect to [preambular paragraph(PP)] 4 and PP6, references to human rights law during armed conflict by necessity refer only to those provisions,if any, that may be applicable. As may be well known, it is the position of the United States Government that theLaw of War is the lex specialis governing armed conflict.) (amendment in original).

8to armed conflict; and (4) law of war treaties explicitly incorporating concepts from other bodiesof law.

In some cases, it may be difficult to distinguish between these approaches, and differententities may apply different approaches to achieve the same result. 12 Although there are differentapproaches and although the ultimate resolution may depend on the specific rules and context,the law of war, as the lex specialis of armed conflict, is the controlling body of law with regardto the conduct of hostilities and the protection of war victims. 13

1.3.2.1 The Law of War as the Lex Specialis Governing Armed Conflict. Themaxim lex specialis derogat legi generali means that [a]s a rule the special rule overrides thegeneral law. 14 The rule that is more specifically directed towards the action receives prioritybecause it takes better account of the particular features of the context in which the law is to beapplied, thus creating a more equitable result and better reflecting the intent of the authoritiesthat have made the law. 15

The law of war has been developed with special consideration of the circumstances ofwar and the challenges inherent in its regulation by law. Thus, for example, the exigencies ofarmed conflict cannot justify violating the law of war. 16 Moreover, lawmakers sometimes have

12 Report of the International Law Commission, Fifty-sixth session (3 May-4 June and 5 July-6 August 2004), U.N.Doc. A/59/10 304 (2004) (In introducing the part of the study concerning the function and scope of the lexspecialis rule, the Chairman stressed several points. First, he emphasized that recourse to the lex specialis rule wasan aspect of legal reasoning that was closely linked to the idea of international law as a legal system. The lexspecialis maxim sought to harmonize conflicting standards through interpretation or establishment of definiterelationships of priority between them. In fact, he said, it was often difficult to distinguish between these twoaspects of the functioning of the technique: the interpretation of a special law in the light of general law, and thesetting aside of the general law in view of the existence of a conflicting specific rule. The adoption of a systemicview was important precisely in order to avoid thinking of lex specialis in an overly formal or rigid manner. Itsoperation was always conditioned by its legal-systemic environment.).13 Observations of the United States of America on the Human Rights Committees Draft General Comment 35:Article 9, June 10, 2014, 20 (While the United States acknowledges that difficult questions arise regarding theapplicability of international human rights law in situations of armed conflict, the draft does not accord sufficientweight to the well-established principle that international humanitarian law, as the lex specialis of armed conflict, isthe controlling body of law with regard to the conduct of hostilities and the protection of war victims.).14 Colleanu v. German State, German-Rumanian Mixed Arbitral Tribunal, Jan. 12, 1929, reprinted in H.LAUTERPACHT, V INTERNATIONAL LAW REPORTS 438 (1929). See also GROTIUS, LAW OF WAR & PEACE 428(2.16.29.1) ([A]mong agreements which are equal in respect to the qualities mentioned, that should be givenpreference which is most specific and approaches most nearly to the subject at hand; for special provisions areordinarily more effective than those that are general).15 U.N. International Law Commission, Conclusions of the work of the Study Group on the Fragmentation ofInternational Law: Difficulties arising from the Diversification and Expansion of International Law 2(7) (2006)(Rationale of the principle. That special law has priority over general law is justified by the fact that such speciallaw, being more concrete, often takes better account of the particular features of the context in which it is to beapplied than any applicable general law. Its application may also often create a more equitable result and it mayoften better reflect the intent of the legal subjects.).16 Refer to 2.2.2 (Military Necessity and Law of War Rules).

9considered peacetime rules appropriate to apply during armed conflict, and in certain of thesecases, they have explicitly incorporated such concepts into the law of war. 17

Thus, traditionally, the law of war has been described as the only authoritative rules ofaction between hostile armies, or as superseding ordinary law in the actual theater of militaryoperations. 18 Similarly, law of war treaties have been viewed as a clear example of a lexspecialis in relation to treaties providing peacetime norms concerning the same subjects. 19

1.3.2.2 Construing Other Laws to Avoid Conflict With the Law of War. Potentialconflicts between the law of war and other law may be resolved by construing such other law toavoid conflict with law of war rules.

Underlying this approach is the fact that the law of war is firmly established in customaryinternational law as a well-developed body of law that is separate from the principles of lawgenerally applicable in peace. 20 Lawmakers have been understood not to amend that well-developed body of law, absent affirmative evidence of an intention to do so. 21 In a similar

17 Refer to 1.3.2.4 (Explicit Incorporation of Concepts From Other Bodies of Law Into the Law of War).18 See LIEBER CODE art. 40 (There exists no law or body of authoritative rules of action between hostile armies,except that branch of the law of nature and nations which is called the law and usages of war on land.). See alsoWINTHROP, MILITARY LAW & PRECEDENTS 773-74 (By the term LAW OF WAR is intended that branch ofInternational Law which prescribes the rights and obligations of belligerents, ormore broadlythose principlesand usages which, in time of war, define the status and relations not only of enemieswhether or not in armsbutalso of persons under military government or martial law and persons simply resident or being upon the theatre ofwar, and which authorizes their trial and punishment when offenders. Unlike Military Law Proper, the Law of Warin this country is not a formal written code, but consists mainly of general rules derived from International Law,supplemented by acts and orders of the military power and a few legislative provisions. In general it is quiteindependent of the ordinary law. On the actual theatre of military operations, as is remarked by a learned judge,the ordinary laws of the land are superseded by the laws of war. The jurisdiction of the civil magistrate is theresuspended, and military authority and force are substituted. Finding indeed its original authority in the war powersof Congress and the Executive, and thus constitutional in its source, the Law of War may, in its exercise,substantially supersede for the time even the Constitution itself as will be hereinafter indicated.).19 C. Wilfred Jenks, The Conflict of Law-Making Treaties, 30 BRITISH YEARBOOK OF INTERNATIONAL LAW 401, 446(1953) (A clear illustration of [the lex specialis principles] applicability is afforded by instruments relating to thelaws of war which, in the absence of evidence of a contrary intention or other special circumstances, must clearly beregarded as a leges speciales in relation to instruments laying down peace-time norms concerning the samesubjects.).20 Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the UnitedStates of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 200-01 (Mar. 4,1991) (The laws of armed conflict are firmly established in customary international law as a well-developed bodyof law separate from the principles of law generally applicable in times of peace.).21 See, e.g., Case Concerning Oil Platforms (Iran v. United States), Preliminary Objection, Judgment,1996 I.C.J.874, 876 (Dissenting Opinion of Vice-President Schwebel) (It is plain that this is a Treaty which is essentiallyconcerned with encouraging mutually beneficial trade and investments and closer economic intercourse on the basisof reciprocal equality of treatment. There is no suggestion of regulating the use of armed force by one party againstthe other. None of these core provisions of the Treaty suggests that attacks by armed forces of one party againstwhat it treats as military objectives within the jurisdiction of the other party are within the reach of the Treaty. It issignificant as well that the Treaty contains none of the treaty provisions which typically do bear on the internationaluse of force.); Written Statement of the Government of the United States of America, 34, Jun. 20, 1995, I.C.J.,Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use ofNuclear Weapons (No international environmental instrument is expressly applicable in armed conflict. No such

10fashion, for comparison, the GC deliberately excludes from its application the nationals ofcertain States in order to avoid creating complications or inconsistencies in procedures shouldboth the GC and the law applicable to normal diplomatic representation apply. 22

In some cases, treaties explicitly clarify that they do not affect States rights under thelaw of war. 23 For example, the 1944 Chicago Convention on civil aviation explicitly providesthat it does not affect the freedom of action of States during armed conflict. 24 However, evenwhen not explicitly stated, infringements on the law of war through international agreements thatprimarily address situations other than armed conflict are not to be presumed. 25 For example, theLOS Convention has been interpreted not to impair a States rights during armed conflict, eventhough this principle is not explicitly stated in the treaty. 26 In addition, the InternationalConvention for the Suppression of the Financing of Terrorism has been understood not topreclude any State Party to the Convention from conducting any legitimate activity against anylawful target in accordance with the law of armed conflict. 27

instrument expressly prohibits or regulates the use of nuclear weapons. Consequently, such an internationalenvironmental instrument could be applicable only by inference. Such an inference is not warranted because noneof these instruments was negotiated with the intention that it would be applicable in armed conflict or to any use ofnuclear weapons. Further, such an implication is not warranted by the textual interpretation of these instruments.);Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the UnitedStates of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 207 (Mar. 4,1991) (When, 14 years later, the ICAO Assembly drafted Article 3 bis of the Chicago Convention, discussedabove, it was careful to include in the Article a statement that it should not be interpreted as modifying in any waythe rights and obligations of States set forth in the Charter of the United Nations; which included the inherent rightof self-defense. The participants at the Montreal conference would have included a similar provision if they hadintended the Montreal Convention to modify the laws of armed conflict, and particularly if they had intended toaddress actions by military forces in armed conflict. There is no such provision in the Montreal Convention.).22 Refer to 10.3.3.3 (Nationals of a Neutral State or Co-Belligerent State While Normal Diplomatic RepresentationExists).23 See, e.g., Convention on the Protection of Submarine Cables, art. 15, Mar. 14, 1884, 24 STAT. 989, 997 (It isunderstood that the stipulations of this Convention shall in no wise affect the liberty of action of belligerents.).24 Refer to 14.1.1.1 (1944 Chicago Convention and Freedom of Action of States During Armed Conflict).25 Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the UnitedStates of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J., (Iran v. United States) 203 (Mar. 4,1991) (Infringements on the laws of armed conflict through international agreements primarily addressingsituations other than armed conflict are not to be presumed. There is no indication that the drafters of the MontrealConvention intended it to apply to military forces acting in armed conflict. If they had so intended, they would havehad to address a myriad of issues relating to acts by military forces.); The S.S. Wimbledon, (United Kingdom,France, Japan v. Germany), Judgment (MM. Anzilotti and Huber, dissenting), 1923 P.C.I.J. (series A) 1, 35, 36 (3)(In this respect, it must be remembered that international conventions and more particularly those relating tocommerce and communications are generally concluded having regard to normal peace conditions. If, as the resultof a war, a neutral or belligerent State is faced with the necessity of taking extraordinary measures temporarilyaffecting the application of such conventions in order to protect its neutrality or for the purposes of national defence,it is entitled to do so even if no express reservations are made in the convention. This right possessed by all nations,which is based on generally accepted usage, cannot lose its raison dtre simply because it may in some cases havebeen abused;).26 Refer to 13.1.1 (The Law of the Sea During Armed Conflict).27 United States, Statement on Ratification of International Convention for the Suppression of the FinancingTerrorism, Jun. 26, 2002, 2185 UNTS 611, 612 ((1) Exclusion of legitimate activities against lawful targets. The

11 In addition to treaties, domestic statutes have also been construed not to violateinternational law, including the law of war, if any other construction remains possible. 28 Certaindomestic statutes have been interpreted not to apply to situations addressed by the law of warbecause such intention was not made clear and unequivocal. 29

1.3.2.3 Using the Law of War to Determine the Content of General Standards ifApplied to Armed Conflict. Another way in which the law of war has been applied as lexspecialis is to determine the content of a more general standard with respect to the situation ofarmed conflict. For example, the law of war has been used to inform the content of generalauthorizations to conduct military operations. 30

United States of America understands that nothing in the Convention precludes any State Party to the Conventionfrom conducting any legitimate activity against any lawful target in accordance with the law of armed conflict.).28 The Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.) (It has also been observed that an act of Congressought never to be construed to violate the law of nations if any other possible construction remains, andconsequently can never be construed to violate neutral rights or to affect neutral commerce further than is warrantedby the law of nations as understood in this country. These principles are believed to be correct, and they ought to bekept in view in construing the act now under consideration.).29 See, e.g., Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot DownCivil Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 163-64 (Specifically, we believe that the section would not apply to the actions of United States military forces actingon behalf of the United States during a state of hostilities. As discussed above, 32(b)(2) was intended toimplement the United Statess obligations under the Montreal Convention. That Convention does not appear toapply to acts of armed forces that are otherwise governed by the laws of armed conflict. We do not think that 32(b)(2) should be construed to have the surprising and almost certainly unintended effect of criminalizing actionsby military personnel that are lawful under international law and the laws of armed conflict. We note specificallythat the application of 32(b)(2) to acts of United States military personnel in a state of hostilities could readily leadto absurdities: for example, it could mean in some circumstances that military personnel would not be able toengage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution. UnlessCongress by a clear and unequivocal statement declares otherwise, 32(b)(2) should be construed to avoid suchoutcomes. Thus, we do not think the statute, as written, should apply to such incidents as the downing on July 3,1988 of Iran Air Flight 655 by the United States Navy cruiser Vincennes.); France Biddle, Attorney General,Procurements by Commanding Generals in Foreign Theaters of Operations, Nov. 12, 1942, 40 OPINIONS OF THEATTORNEY GENERAL 250, 253 (1949) (The statutes in question do not expressly declare that their provisions areinapplicable to foreign theaters of operations. But there are conclusive reasons for inferring that the Congress didnot intend them to apply to such theaters. The Supreme Court has long recognized that the power to conductmilitary campaigns includes power to procure needed supplies in theaters of operations by whatever methods aredictated by military necessity. Property may be taken summarily, even from a citizen, if military exigencies makeits seizure reasonably appear to be necessary. It is unthinkable that the Congress attempted, by statutory restrictions,to abrogate this rule of military necessity, to handicap commanding generals waging war on foreign soil, to limit orencroach upon the power of the President as Commander in Chief to conduct, through his subordinates, militarycampaigns abroad.) (internal citations omitted).30 Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality) (In light of these principles, it is of no moment that theAUMF does not use specific language of detention. Because detention to prevent a combatants return to thebattlefield is a fundamental incident of waging war, in permitting the use of necessary and appropriate force,Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.). Seealso In re Guantanamo Bay Litigation, Respondents Memorandum Regarding the Governments DetentionAuthority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 4 (D.D.C., Mar. 13, 2009) (TheUnited States bases its detention authority as to such persons on the Authorization for the Use of Military Force(AUMF), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarilyinformed by principles of the laws of war.).

12 As another example, to the extent that the concept of due regard for the safety of civilaircraft may be deemed to apply during armed conflict, what regard is due would be understoodin terms of the requirements of the law of war. 31 Similarly, to the extent that the concept of dueregard for the rights of other States under the law of the sea may be deemed to apply duringarmed conflict, what regard is due would be understood in terms of the requirements of the lawof war. 32

Lastly, even where international courts or commissions have characterized human rightsobligations as applicable during armed conflict, they generally have characterized the content ofthose obligations as determined by standards and tests drawn from the law of war. 33

1.3.2.4 Explicit Incorporation of Concepts From Other Bodies of Law Into theLaw of War. In some cases, law of war treaties explicitly incorporate concepts from other bodiesof law. For example, the peacetime property law concept of usufruct is made applicable to theduties of the Occupying States. 34 Similarly, the GC explicitly applies a peacetime rule withrespect to the nationals of the Occupying Power who, before the outbreak of hostilities, havesought refuge in the occupied territory. 35 And as another example, Common Article 3 of the1949 Geneva Conventions incorporates by reference those judicial guarantees that arerecognized as indispensable by civilized peoples. 36

1.3.3 Restrictive and Permissive Character of the Law of War. In certain respects, the lawof war may be viewed as prohibitive; in other respects, the law of war may be viewed aspermissive. 37

1.3.3.1 Law of War as Prohibitive Law. The law of war that relates to the conductof hostilities has generally been viewed as prohibitive law, in the sense that it forbids ratherthan authorizes certain uses of force. 38 For example, the lawfulness of the use of a type of

31 Refer to 14.1.1.4 (Due Regard for the Safety of Navigation of Civil Aircraft).32 Refer to 13.1.1 (The Law of the Sea During Armed Conflict).33 Refer to 1.6.3.1 (Relationship Between Human Rights Treaties and the Law of War).34 Refer to 11.18.5.2 (Public Real (Immovable) Property That Is Essentially of a Non-Military Nature).35 Refer to 11.11.7.2 (Protection of Nationals of the Occupying Power Who, Before the Outbreak of Hostilities,Have Sought Refuge in the Territory of the Occupied State).36 Refer to 8.16 (Criminal Procedure and Punishment).37 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 5 (Throughout the pages of this study a basic fact willappear repeatedly: the laws of war, including the rules applicable to belligerent occupation, are in part permissiveand in part prohibitivea fact that has been overlooked frequently in treatments of the subject.).38 See Richard R. Baxter, So-Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs, 28 BRITISH YEARBOOK OF INTERNATIONAL LAW 323, 324 (1951) (The law of war is, in the descriptive words of a war crimestribunal, prohibitive law in the sense that it forbids rather than authorizes certain manifestations of force.)(quoting United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1252);Gherebi v. Obama, 609 F. Supp. 2d 43, 65 (D.D.C. 2009) (rejecting as exactly backwards the notion that theGeneva Conventions must specifically enable its signatories to act in a specific manner for a signatory to have theauthority necessary to take such action.); JOHN WESTLAKE, II INTERNATIONAL LAW 52 (1907) (These rules arealways restrictive, never permissive in any other sense than that of the absence of prohibition, for law can give nopositive sanction to any act of force of which it cannot secure the employment on the side of justice alone, even if

13weapon does not depend on an absence of authorization, but, on the contrary, on whether theweapon is prohibited. 39

One rationale for this view is that the rules binding upon States in treaties and customarylaw reflect restrictions that they have accepted, and that States are otherwise independent entitieswith freedom to act. 40 Thus, the authority to take actions under the law of war would be viewedas emanating from the States rights as a sovereign entity rather than from any particularinstrument of international law.

The prohibitive character of the law of war that relates to the conduct of hostilities is alsoconsistent with the view that jus in bello applies to aggressors and defenders alike. The fact thatan aggressor complies with jus in bello does not justify the legality of its military operationsunder jus ad bellum. 41

The lack of an express prohibition in treaty law, however, does not necessarily mean thatan action is lawful under jus in bello. When no specific rule applies, the principles of the law ofwar form the general guide for conduct during war. 42

1.3.3.2 Law of War as Permissive Law. Although the law of war is generallyviewed as prohibitive law, in some respects, especially in the context of domestic law, the lawof war may be viewed as permissive or even as a source of authority. 43

For example, the principle of military necessity in the customary law of war may beviewed as justifying or permitting certain acts. 44 Similarly, under the law of belligerent

the particular act be not one which the law would prohibit both to the just and to the unjust if it could. Whenevertherefore in speaking of the laws of war it is said that a belligerent may do this or that, it is always only the absenceof prohibition that must be understood.).39 Refer to 6.2.1 (Review of New Types of Weapons).40 The S.S. Lotus, (France v. Turkey) (Judgment), 1927 P.C.I.J. (series A) No. 10, at 18 (International law governsrelations between independent States. The rules of law binding upon States therefore emanate from their own freewill as expressed in conventions or by usages generally accepted as expressing principles of law and established inorder to regulate the relations between these co-existing independent communities or with a view to the achievementof common aims. Restrictions upon the independence of States cannot therefore be presumed.).41 Refer to 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).42 Refer to 2.1.2.2 (Law of War Principles as a General Guide).43 See, e.g., Eric Holder, Attorney General, Remarks at Northwestern University School of Law, Mar. 5, 2012, 2012DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577, 581 (It is preferable to capture suspectedterrorists where feasibleamong other reasons, so that we can gather valuable intelligence from thembut we mustalso recognize that there are instances where our government has the clear authorityand, I would argue, theresponsibilityto defend the United States through the appropriate and lawful use of lethal force. This principle haslong been established under both U.S. and international law. In response to the attacks perpetratedand thecontinuing threat posedby al Qaeda, the Taliban, and associated forces, Congress has authorized the President touse all necessary and appropriate force against those groups. Because the United States is in an armed conflict, weare authorized to take action against enemy belligerents under international law. The Constitution empowers thePresident to protect the nation from any imminent threat of violent attack. And international law recognizes theinherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.).44 Refer to 2.2.1 (Military Necessity as a Justification).

14occupation, the fact of occupation is the basis for the Occupying Power to exercise authority overthe occupied territory. 45 In addition, law of war treaties also sometimes recognize Statesauthorities in war. 46

1.3.4 Purposes of the Law of War. The main purposes of the law of war are:

providing certain fundamental protections for persons who fall into the hands of the enemy, particularly prisoners of war, civilians, and military wounded, sick, and shipwrecked; 48

facilitating the restoration of peace; 49

assisting military commanders in ensuring the disciplined and efficient use of military force; 50 and

preserving the professionalism and humanity of combatants. 51

1.4 OBJECT AND NATURE OF WAR

Understanding the object and nature of war is important in understanding and applyingthe law of war. 52

45 Refer to 11.2.1 (Military Occupation as a Fact).46 See, e.g., GPW art. 21 (recognizing that [t]he Detaining Power may subject prisoners of war to internment.);HAGUE IV REG. art. 24 (recognizing that [r]uses of war and the employment of measures necessary for obtaininginformation about the enemy and the country are considered permissible.).47 Refer to 2.3 (Humanity).48 Refer to 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power ofa Party to the Conflict); 8.2 (Humane Treatment of Detainees); 9.5 (Humane Treatment and Basic Protectionsfor POWs); 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).49 Refer to 12.1.2.2 (Non-Hostile Relations to Facilitate the Restoration of Peace).50 Refer to 18.2.1 (Reinforcing Military Effectiveness).51 Refer to 2.6 (Honor).52 DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 1 (Oct. 23, 1962) (An understanding ofthe laws of war necessitates an understanding of war itself. It is the phenomenon of war which these laws areattempting in some manner to control.). See also Adam Roberts, Land Warfare: From Hague to Nuremberg, inMICHAEL HOWARD, GEORGE J. ANDREOPOULOUS, & MARK A. SHULMAN, THE LAWS OF WAR: CONSTRAINTS ONWARFARE IN THE WESTERN WORLD 117 (1994) (The laws of war are strange not only in their subject matter, whichto many people seems a contradiction in terms, but also in their methodology. There is little tradition of disciplinedand reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats haveoften been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they havebeen at assessing the performance of existing accords or at generalizing about the circumstances in which they canor cannot work. In short, the study of law needs to be integrated with the study of history; if not, it is inadequate.).

15 1.4.1 Object of War. The object of war has been understood to be the submission of theenemy as quickly and efficiently as possible. 53 The military defeat of the enemy in war isintended to advance political objectives. 54 Even where those political objectives are limited, theobject of war is nonetheless to ensure the submission of the enemy as quickly and efficiently aspossible. 55

The object of war informs the principle of military necessity and what uses of force maybe justified in war. 56 Nevertheless, the law of war limits what uses of force the object of warmay justify. 57

1.4.2 Nature of War.

1.4.2.1 Nature of War Violence and Suffering. War has been described as aviolent clash of interests characterized by the use of force. 58 The fact that violence is an essential

53 See 1940 RULES OF LAND WARFARE 22 (The object of war is to bring about the complete submission of theenemy as soon as possible by means of regulated violence.); 1914 RULES OF LAND WARFARE 10 (same).54 George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict: Developmentof the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 880 (Jun. 18, 1973) (What we have seen isall too clearly a general acceptance of the view that modern war is aimed not merely at the enemys military forcesbut at the enemys willingness and ability to pursue its war aims. Thus, in the Second World War the enemys willto fight and his capacity to produce weapons were primary targets; and saturation bombing, blockade of foodsupplies, and indiscriminate terror weapons such as the German V bombs, were all brought to bear on those targets.In Viet-Nam political, rather than military, objectives were even more dominant. Both sides had as their goal notthe destruction of the others military forces but the destruction of the will to continue the struggle.); United Statesv. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 485 (War is theexerting of violence by one state or politically organized body against another. In other words, it is theimplementation of a political policy by means of violence.); CARL VON CLAUSEWITZ, ON WAR 87 (1989) (We see,therefore, that war is not merely an act of policy but a true political instrument, a continuation of politicalintercourse, carried on with other means. What remains peculiar to war is simply the peculiar nature of its means.War in general, and the commander in any specific instance, is entitled to require that the trend and designs of policyshall not be inconsistent with these means. That, of course, is no small demand; but however much it may affectpolitical aims in a given case, it will never do more than modify them. The political object is the goal, war is themeans of reaching it, and means can never be considered in isolation from their purpose.).55 For example, General Colin L. Powell, Chairman of the Joint Chiefs of Staff, U.S. Forces: Challenges Ahead, 71FOREIGN AFFAIRS 32, 37 (1992) (explaining that despite the limited political objectives of the 1991 Gulf War, theUnited States did use overwhelming force quickly and decisively.).56 Refer to 2.2.1 (Military Necessity as a Justification); 2.2.3.1 (Consideration of the Broader Imperatives ofWinning the War).57 Refer to 2.2.2 (Military Necessity and Law of War Rules).58 DEPARTMENT OF THE ARMY FIELD MANUAL 3-24, Counterinsurgency, 1-1 (1-1) (Dec. 2006) (Insurgency andcounterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization,and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict;however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times.Warfare remains a violent clash of interests between organized groups characterized by the use of force. Achievingvictory still depends on a groups ability to mobilize support for its political interests (often religiously or ethnicallybased) and to generate enough violence to achieve political consequences. Means to achieve these goals are notlimited to conventional forces employed by nation-states.); MARINE CORPS DOCTRINAL PUBLICATION 1,Warfighting, 3 (Jun. 20, 1997) (explaining that war is a violent clash of interests between or among organizedgroups characterized by the use of military force.).

16element of war has been viewed as important in understanding the nature of war. 59 The violentnature of war has also meant that suffering has been an unfortunate and tragic, but unavoidableconsequence of war. 60

Law of war treaties such as the Hague and Geneva Conventions have been negotiatedwith the understanding that suffering and destruction are unavoidably part of war. 61 But thesetreaties and the principle of humanity seek to reduce unnecessary suffering and destruction. 62

1.4.2.2 Nature of War Limited and Unreliable Information Fog of War.

During war, information is often limited and unreliable. 63 The uncertainty of information in warresults from the chaotic nature of combat and from the opposing sides efforts to deceive oneanother, which generally is not prohibited by the law of war. 64

The limited and unreliable nature of information available during war has influenced thedevelopment of the law of war. For example, it affects how the principle of military necessity is

59 MARINE CORPS DOCTRINAL PUBLICATION 1, Warfighting, 14 (Jun. 20, 1997) (War is among the greatest horrorsknown to humanity; it should never be romanticized. The means of war is force, applied in the form of organizedviolence. It is through the use of violence, or a credible threat of violence, that we compel our enemy to do our will.Violence is an essential element of war, and its immediate result is bloodshed, destruction, and suffering. While themagnitude of violence may vary with the object and means of war, the violent essence of war will never change.Any study of war that neglects this basic truth is misleading and incomplete.).60 For example, Friedrich II, Letter to Lord Marischal, Nov. 23, 1758 reprinted in THOMAS CARLYLE, V HISTORY OFFRIEDERICH II OF PRUSSIA: CALLED FREDERICK THE GREAT 386 (1865) (Our Campaign is over; and there hasnothing come of it on one side or the other, but the loss of a great many worthy people, the misery of a great manypoor soldiers crippled forever, the ruin of some Provinces, the ravage, pillage and conflagration of some flourishingTowns. Exploits these, which make humanity shudder: .).61 Edward R. Cummings, Acting Assistant Legal Adviser for Politico-Military Affairs, Remarks at Symposium atBrooklyn Law School, Sept. 25, 1982, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONALLAW 1981-88 3421, 3422 (The Conventions referred to today, such as the Hague and Geneva Conventions, areimportant ones and are strongly supported by the United States. They have helped reduce the suffering caused bywars. But one should not ask the impossible of these agreements. They were not intended to make war humane orto ban war, or to make wars more difficult to fight. They were modestly intended to reduce the inhumanity andbarbarity of war when militarily possible. Anyone who has read the negotiating records of these old agreements willnote that they were largely negotiated by the military. In fact, the first agreement of this kind, the St. PetersburgDeclaration, was agreed to by a military commission. Unrealistic provisions which just would not be accepted orrespected in battle were not favored.).62 Refer to 2.3 (Humanity).63 See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1297(The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of theenemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and theuncertainty of his intentions.); CARL VON CLAUSEWITZ, ON WAR 140 (1989) (the general unreliability of allinformation presents a special problem in war: all action takes place so to speak, in a kind of twilight, which likefog or moonlight, often tends to make things grotesque and larger than they really are.).64 Refer to 5.25 (Ruses of War and Other Lawful Deceptions).

17applied. 65 The limited and unreliable nature of information available during war also isrecognized in the law of wars standards for how persons are to assess information. 66

1.5 WAR AS A LEGAL CONCEPT

War is sometimes used as a legal concept, i.e., the application or operation of a legalrule may depend on the existence of a war, armed conflict, or hostilities. As a legalconcept, war has traditionally been viewed as a condition in which a State is prosecuting itsrights by military force, usually against another State. However, the precise definition of waroften depends on the specific legal context in which it is used.

1.5.1 Traditional Conception of War Under International Law. As international law

began to regulate war, hostilities, and armed conflict, it became necessary to determinewhat war is for the purpose of triggering those legal obligations. 67

As a legal concept, war has usually been described as a condition or state that appliesmore broadly than only the mere employment of force or the mere commission of acts ofviolence. 68

When treated as a legal concept, war has been associated with a States use of force tovindicate its rights (principally, its inherent right of self-defense) under international law. 69

65 Refer to 2.2.3 (Applying Military Necessity).66 Refer to 5.4 (Assessing Information Under the Law of War).67 See, e.g., Arnold D. McNair, The Legal Meaning of War, and the Relation of War to Reprisals, 11 TRANSACTIONSOF THE GROTIUS SOCIETY 29, 30 (1925) (There exist many treaties and other international conventions under whichimportant obligations arise upon the occurrence of a state of war, and as regards which, therefore, either becausethe term war or some other term connoting war, such as neutrality, is used, it becomes essential to know whetheror not a state of war exists at a given point of time. Thus most of the Hague Conventions only come into operationonce a state of war has arisenfor instance, those relating to the Laws and Customs of War on Land, to the Rightsand Duties of Neutrals in Land and Maritime War respectively, to the Bombardment of Ports, Towns and Villagesby Naval Forces, and to the Status of Enemy Merchant Ships at the Outbreak of Hostilities.).68 1956 FM 27-10 (Change No. 1 1976) 8 (While it is usually accompanied by the commission of acts of violence,a state of war may exist prior to or subsequent to the use of force.); VII MOORES DIGEST 153 (Much confusionmay be avoided by bearing in mind the fact that by the term war is meant not the mere employment of force, but theexistence of the legal condition of things in which rights are or may be prosecuted by force.); GROTIUS, LAW OFWAR & PEACE 33 (1.1.2.1) (war is the condition of those contending by force).69 SPAIGHT, AIR POWER AND WAR RIGHTS 2 (War, after all, is only a means to an end. It is a way of settling aninternational difference which diplomacy has failed to adjust and which is not susceptible of treatment by the othermeans of pacific settlement, such as inquiry commissions, arbitration, or submission to the Permanent Court of TheHague. When all else fails, there is no way in which a nation can assert its rights save by going to war. War is themeans by which it vindicates a vital right threatened or infringed by the claim or act of another State. Its object is tocause the other State to desist from the action or abandon the claim which is the cause of offence. In other words, awar is fought in order to bring about a change of mind in another State.); The Prize Cases, 67 U.S. 635, 666 (1863)(War has been well defined to be, That state in which a nation prosecutes its right by force.) (quoting EMERICHDE VATTEL, DROIT DE GENS (LAW OF NATIONS) (1760)); LIEBER CODE art. 30 (Ever since the formation andcoexistence of modern nations, and ever since wars have become great national wars, war has come to beacknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against

18 Traditionally, war has often been described as a legal condition between two or more 70States. However, certain law of war rules apply to non-international armed conflicts (such asintrastate conflicts or conflicts between a State and a non-State armed group). 71

1.5.2 Different Definitions of War for Different Legal Purposes. There is no singlelegal definition of war, hostilities, or armed conflict, and the definition of these terms hasvaried in both domestic and international law.

In domestic law, war, hostilities, and armed conflict have been interpreteddifferently depending on the specific legal context at issue. 72 For example, under theConstitution, Congress has the power to declare war. 73 Thus, war might be interpreted todetermine whether a military operation constitutes war in this sense. 74 Similarly, the WarPowers Resolution states certain requirements that are triggered when U.S. forces are introduced

wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the lawof war imposes many limitations and restrictions on principles of justice, faith, and honor.).70 1956 FM 27-10 (Change No. 1 1976) 8a (War may be defined as a legal condition of armed hostility betweenStates. While it is usually accompanied by the commission of acts of violence, a state of war may exist prior to orsubsequent to the use of force. The outbreak of war is usually accompanied by a declaration of war (see par. 20).Instances of armed conflict without declaration of war may include, but are not necessarily limited to, the exercise ofarmed force pursuant to a recommendation, decision, or call by the United Nations, in the exercise of the inherentright of individual or collective self-defense against armed attack, or in the performance of enforcement measuresthrough a regional arrangement, or otherwise, in conformity with appropriate provisions of the United NationsCharter.); LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 202 (54) (War is a contention between two ormore States through their armed forces, for the purpose of overpowering each other and imposing such conditions ofpeace as the victor pleases.); LIEBER CODE art. 20 (Public war is a state of armed hostility between sovereignnations or governments. It is a law and requisite of civilized existence that men live in political, continuoussocieties, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance andretrograde together, in peace and in war.).71 Refer to 3.3.1 (International Armed Conflict and Non-International Armed Conflict).72 See, e.g., Fred K. Green, The Concept of War and the Concept of Combatant in Modern Conflicts, 10MILITARY LAW AND LAW OF WAR REVIEW 267, 269 (1971) ([I]n US municipal law, the existence of war and itsbeginning and termination is a question of objective fact determined for different purposes by different agencies ofthe sovereign. There has been no apparent effort to coordinate federal law so as to permit establishment of fixedcriteria that would be identified and applicable for all purposes. The tremendous variations in result that thissituation produces renders meaningless any attempt to generalize with respect to established criteria.).73 U.S. CONSTITUTION art. I, 8.74 Caroline D. Krass, Principal Deputy Assistant Attorney General, Authority to use Military Force in Libya, 8 (Apr.1, 2011) ([T]he historical practice of presidential military action without congressional approval precludes anysuggestion that Congresss authority to declare war covers every military engagement, however limited, that thePresident initiates. In our view, determining whether a particular planned engagement constitutes a war forconstitutional purposes instead requires a fact-specific assessment of the anticipated nature, scope, and duration ofthe planned military operations. Haiti Deployment, 18 Op. O.L.C. at 179.).

19into hostilities. 75 Other statutes may require a determination that conduct has occurred[w]hen the United States is at war or during time of war. 76

Under international law, war, hostilities, and armed conflict may also beinterpreted with different purposes in mind. 77 A state of war can affect what duties States thatare not participating in the conflict have under the law of neutrality. 78 A state of war can affectwhether peacetime treaties between two States continue to apply. Most importantly for thepurposes of this manual, the terms war and armed conflict are used to describe when jus inbello rules apply. 79

1.6 LAW OF WAR DISTINGUISHED FROM CERTAIN TOPICS

The law of war may be distinguished from the following topics: (1) operational law; (2)arms control; (3) human rights treaties; (4) the Just War Tradition; (5) rules of engagement; and(6) the Code of Conduct for U.S. Armed Forces.

1.6.1 Operational Law. The law of war is an important part of, but not the entirety of,operational law. Operational law consists of that body of domestic, foreign, and internationallaw that specifically pertains to the activities of military forces across the entire conflictspectrum. Operational law includes diverse legal disciplines, such as military justice,administrative and civil law, legal assistance, claims, procurement law, national security law,fiscal law, and the law of war. 80

75 See 50 U.S.C. 1543(a)(1) (In the absence of a declaration of war, in any case in which United States ArmedForces are introduced (1) into hostilities or into situations where imminent involvement in hostilities is clearlyindicated by the circumstances; the President shall submit within 48 hours to the Speaker of the House ofRepresentatives and to the President pro tempore of the Senate a report, in writing, setting forth .).76 See, e.g., 10 U.S.C. 843(f) (When the United States is at war, the running of any statute of limitationsapplicable to [certain offenses] is suspended until three years after the termination of hostilities as proclaimed bythe President or by a joint resolution of Congress.); 10 U.S.C. 906 (Any person who in time of war is foundlurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of anyof the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place orinstitution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by ageneral court-martial or by a military commission and on conviction shall be punished by death. This section doesnot apply to a military commission established under chapter 47A of this title.).77 JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 312 (1954) ([T]he question War or No War?may have to be answered differently according to the purposes for which an answer is sought. One answer, forexample, may be indicated for the purposes of the rules for the mitigation of suffering; another for those governingwar supplies to belligerents from neutral governments, or governing blockade or contraband.).78 Refer to 15.2.1 (Armed Conflict and the Application of the Law of Neutrality).79 Refer to 3.4 (When Jus in Bello Rules Apply).80 THE JUDGE ADVOCATE GENERALS SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK JA 422 1-1 (1997)([Operational law is] [t]hat body of domestic, foreign, and international law that impacts specifically upon theactivities of U.S. Forces across the entire operational spectrum. Operational law is the essence of the military legalpractice. It is a collection of diverse legal and military skills, focused on military operations. It includes militaryjustice, administrative and civil law, legal assistance, claims, procurement law, environmental law, national securitylaw, fiscal law, international law, host nations law, and the law of war. In short, operational law is a unique blend of

20 1.6.2 Arms Control. Arms control is a broad term that includes a variety of efforts toreduce the numbers, types, performance characteristics, proliferation, testing, or other aspects ofcertain categories of weapons. Arms control usually proceeds through bilateral or multilateraltreaties. Arms control can also include non-binding political commitments, as well as reciprocalunilateral statements of intention or policy. The overall goals of arms control are to reduce: (1)the likelihood of war; (2) the consequences of war, should it occur; and (3) the costs of preparingfor war.

Arms control is closely related to other concepts. For example, non-proliferation refersspecifically to efforts to restrict the spread of weapons (in particular, weapons of massdestruction). Disarmament refers to efforts to eliminate entirely, rather than to restrict, aparticular category of weapon. And sometimes States accept confidence-building measures (orconfidence, security, and transparency-building measures) that do not directly reduce thequantity or quality of armaments, but rather increase States certainty that ambiguous activitiesby other States are not secret actions in violation of arms control obligations.

Arms control and the law of war frequently overlap in treaties. For example, the CCWProtocol IV on Blinding Laser Weapons has both arms control and law of war provisions. 81Similarly, the Chemical Weapons Convention prohibits, inter alia, the development andstockpiling of chemical weapons, but it is also directly relevant to the law of war because itprohibits the use of chemical weapons in all circumstances. 82

1.6.3 Human Rights Treaties. 83 Human rights treaties address primarily the obligationsof governments with respect to the rights of individuals, including their own nationals. 84 For

every source of law that has application within the operational context. Because the definition of operational lawis so broad, ample statutory and regulatory references serve to establish the substance of the practice.).81 Refer to 19.21.5 (CCW Protocol IV on Blinding Laser Weapons).82 Refer to 6.8.3.2 (Prohibitions With Respect to Chemical Weapons).83 This section focuses on human rights treaties and not other sources of international human rights law. See, e.g.,Catherine Amirfar, Counselor for International Law, Department of State, Statement at 53rd Session of the U.N.Committee Against Torture, Nov. 3 28, 2014, Nov. 12, 2014 (For example, the prohibition against torture iscustomary international law binding on all nations everywhere, at all times.); U.N. International Law Commission,State responsibility: Comments and observations received from Governments, U.N. Doc. A/CN.4/488, 133 (Mar.25, 1998) (United States of America Subparagraph (e) [which would reflect a prohibition against conduct by wayof countermeasures in contravention of a peremptory norm of general international law] similarly does not provideuseful guidance in determining whether a countermeasure would be permissible. Just as there is little agreementwith respect to basic human rights and political and economic coercion, the content of peremptory norms isdifficult to determine outside the areas of genocide, slavery and torture.).84 See, e.g., Jimmy Carter, United Nations Remarks on Signing International Covenants on Human Rights, 1977-IIPUBLIC PAPERS OF THE PRESIDENTS 1734 (The Covenant on Civil and Political Rights concerns what governmentsmust not do to their people, and the Covenant on Economic, Social and Cultural Rights concerns what governmentsmust do for their people. By ratifying the Covenant on Civil and Political Rights, a government pledges, as a matterof law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degradingtreatment. It recognizes the right of every person to freedom of thought, freedom of conscience, freedom ofreligion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly,and the right to emigrate from that country.).

21example, governments must refrain from subjecting individuals to arbitrary detention, toarbitrary deprivation of life, or to cruel, inhuman, or degrading treatment or punishment. 85

As a general matter, human rights treaties have been described as primarily applicable tothe relationship between a State and individuals in peacetime. 86 Some human rights treaties alsoprovide for derogation from certain provisions in emergency situations. 87

Law of war treaties have been described as chiefly concerned with the conditionsparticular to armed conflict and the relationship between a State and nationals of the enemyState. 88 Law of war treaties generally do not provide for derogation because necessity is not abasis for derogating from law of war rules. 89

1.6.3.1 Relationship Between Human Rights Treaties and the Law of War. Insome circumstances, the rules in the law of war and the rules in human rights treaties may appearto conflict; these apparent conflicts may be resolved by the principle that the law of war is the lexspecialis during situations of armed conflict, and, as such, is the controlling body of law withregard to the conduct of hostilities and the protection of war victims. 90

85 International Covenant on Civil and Political Rights, art. 9(1), Dec. 19, 1966, 999 UNTS 171, 175 (Everyone hasthe right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall bedeprived of his liberty except on such grounds and in accordance with such procedure as are established by law.);International Covenant on Civil and Political Rights, art. 6(1), Dec. 19, 1966, 999 UNTS 171, 174 (Every humanbeing has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of hislife.); International Covenant on Civil and Political Rights, art. 7, Dec. 19, 1966, 999 UNTS 171, 175 (No oneshall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shallbe subjected without his free consent to medical or scientific experimentation.).86 See, e.g., JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 15 (1975) (Admittedly,human rights embody more general principles while the law of armed conflicts is of a specific and exceptionalnature, coming as it does into operation at the very time when the exercise of human rights is prevented or restrictedby war. But the two legal systems are fundamentally different, for humanitarian law is valid only in the case of anarmed conflict while human rights are essentially applicable in peacetime, and contain derogation clauses in case ofconflict. Moreover, human rights govern relations between the State and its own nationals, the law of war thosebetween the State and enemy nationals.).87 See, e.g., International Covenant on Civil and Political Rights, art. 4(1), Dec. 19, 1966, 999 UNTS 171, 174 (Intime of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,the States Parties to the present Covenant may take measures derogating from their obligations under the presentCovenant to the extent strictly required by the exigencies of the situation, provided that such measures are notinconsistent with their other obligations under international law and do not involve discrimination solely on theground of race, colour, sex, language, religion or social origin.).88 Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OFHUMANITARIAN LAW IN ARMED CONFLICTS 9 (102) (1999) (Human rights law is designed to operate primarily innormal peacetime conditions, and within the framework of the legal relationship between a state and its citizens.International humanitarian law, by contrast, is chiefly concerned with the abnormal conditions of armed conflict andthe relationship between a state and the citizens of its adversary, a relationship otherwise based upon power ratherthan law.).89 Refer to 2.2.2 (Military Necessity and Law of War Rules).90 Refer to 1.3.2 (The Law of Wars Relationship to Other Bodies of Law).

22 For example, the right to challenge the lawfulness of an arrest before a court provided inArticle 9 of the International Covenant on Civil and Political Rights (ICCPR) would appear toconflict with the authority under the law of war to detain certain persons without judicial processor criminal charge. 91 However, the United States has understood Article 9 of the ICCPR not toaffect a States authorities under the law of war, including a States authority in bothinternational and non-international armed conflicts to detain enemy combatants until the end ofhostilities.92 Some international courts or commissions have interpreted the rights conveyed byhuman rights treaties in light of the rules of the law of war, as the applicable lex specialis, whenassessing situations in armed conflict. 93

On the other hand, during armed conflict, human rights treaties would clearly becontrolling with respect to matters that are within their scope of application and that are notaddressed by the law of war. For example, a time of war does not suspend the operation of theICCPR with respect to matters within its scope of application. Therefore, as an illustration,participation in a war would in no way excuse a State Party to the ICCPR from respecting and

91 International Covenant on Civil and Political Rights, art. 9(4), Dec. 19, 1966, 999 UNTS 171, 176 (Anyone whois deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that thatcourt may decide without delay on the lawfulness of his detention and order his release if the detention is notlawful.).92 Observations of the United States of America on the Human Rights Committees Draft General Comment 35:Article 9, 22, Jun. 10, 2014 (Given that international humanitarian law is the controlling body of law in armedconflict with regard to the conduct of hostilities and the protection of war victims, the United States does notinterpret references to detainees and detention in several paragraphs to refer to government action in the contextof and associated with an armed conflict. For example, paragraph 15 incorrectly implies that the detention of enemycombatants in the context of a non-international armed conflict would normally amount to arbitrary detention asother effective measures addressing the threat, including the criminal justice system, would be available. On thecontrary, in both international and non-international armed conflicts, a State may detain enemy combatantsconsistent with the law of armed conflict until the end of hostilities. Similarly, to the extent paragraphs 15 and 66are intended to address law-of-war detention in situations of armed conflict, it would be incorrect to state that thereis a right to take proceedings before a court to enable the court to decide without delay on the lawfulness ofdetention in all cases. In addition, to the extent the discussion of an individual right to compensation under Article9 in paragraphs 49-52 is intended to extend to individuals detained in the context of an armed conflict, as a matter ofinternational law, the rules governing available remedies for unlawful detention in the context of an armed conflictwould be drawn from international humanitarian law.).93 Coard, et al. v. United States, Inter-American Commission on Human Rights, Organization of American States,Case 10.951, Report 109/99, 42 (Sept. 29, 1999) ([I]n a situation of armed conflict, the test for assessing theobservance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from thatapplicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to theapplicable lex specialis.); Juan Carlos Abella v. Argentina, Inter-American Commission on Human Rights,Organization of American States, Case 11.137, OEA/Ser.L/V/II.98, 161 (Nov. 18, 1997) ([T]he Commission mustnecessarily look to and apply definitional standards and relevant rules of humanitarian law as sources ofauthoritative guidance in its resolution of this and other kinds of claims alleging violations of the AmericanConvention in combat situations.); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996I.C.J. 226, 240 (25) (In principle, the right not arbitrarily to be deprived of ones life applies also in hostilities.The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lexspecialis, namely, the law applicable to armed conflict which is designed to regulate the conduct of hostilities.).

23ensuring the right and opportunity of every citizen to vote and to be elected at genuine periodicelections. 94

1.6.3.2 Different Views on the Applicability of Human Rights Treaties. In

conducting operations with coalition partners, it may be important to consider that some Statesmay have different perspectives on the applicability of human rights treaties. Such differencesmay result from different legal interpretations or from the fact that the other State is a Party todifferent human rights treaties than the United States. For example, the European Court ofHuman Rights as well as some European States have construed certain obligations under theEuropean Convention on Human Rights (ECHR) as applicable to their military forces abroadduring occupation. 95

1.6.3.3 International Covenant on Civil and Political Rights (ICCPR). The

United States is a Party to the International Covenant on Civil and Political Rights (ICCPR).

The ICCPR creates obligations for a State with respect to persons within its territory andsubject to its jurisdiction. 96 The United States has long interpreted the ICCPR not to applyabroad. 97 The inclusion of the reference to within its territory in Article 2(1) of the ICCPRwas adopted as a result of a proposal made by U.S. delegate Eleanor Roosevelt specifically to

94 Fourth Periodic Report of the United States of America to the United Nations Committee on Human RightsConcerning the International Covenant on Civil and Political Rights, Dec. 30, 2011, 506 (With respect to theapplication of the Covenant and the international law of armed conflict (also referred to as internationalhumanitarian law or IHL), the United States has not taken the position that the Covenant does not apply in time ofwar. Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope ofapplication. To cite but two obvious examples from among many, a State Partys participation in a war would in noway excuse it from respecting and ensuring rights to have or adopt a religion or belief of ones choice or the rightand opportunity of every citizen to vote and to be elected at genuine periodic elections.).95 Case of Al-Skeini and Others v. The United Kingdom, ECtHR, 55721/07, 149 (Jul. 7, 2011) (It can be seen,therefore, that following the removal from power of the Baath regime and until the accession of the InterimGovernment, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of thepublic powers normally to be exercised by a sovereign government. In particular the United Kingdom assumedauthority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstancesthe Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah duringthe period in question, exercised authority and control over individuals killed in the course of such securityoperations so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes ofArticle 1 of the (ECHR).).96 International Covenant on Civil and Political Rights, art. 2(1), Dec. 19, 1966, 999 UNTS 171, 173 (Each StateParty to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject toits jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour,sex, language, religion, political or other opinion, national or social origin, property, birth or other status.).97 See, e.g., U.N. Human Rights Committee, Summary Record of the 1405th Meeting, U.N. Doc. CCPR/C/SR.14056-7 (20) (Apr. 24, 1995) (Klein had asked whether the United States took the view that the Covenant did not applyto government actions outside the United States. The Covenant was not regarded as having extraterritorialapplication. In general, where the scope of application of a treaty was not specified, it was presumed to apply onlywithin a partys territory. Article 2 of the Covenant expressly stated that each State party undertook to respect andensure the rights recognized to all individuals within its territory and subject to its jurisdiction. That dualrequirement restricted the scope of the Covenant to persons under United States jurisdiction and within UnitedStates territory. During the negotiating history, the words within its territory had been debated and were added byvote, with the clear understanding that such wording would limit the obligations to within a Partys territory.).

24ensure that a State Partys obligations would not apply to persons outside its territories, such asin occupied territory and leased territory. 98

1.6.3.4 Convention Against Torture. The United States is a Party to the

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 99

The Convention against Torture was not intended to supersede the prohibitions againsttorture already contained in customary international law and the 1949 Geneva Conventions or itsAdditional Protocols. 100 The law of war is the controlling body of law with respect to theconduct of hostilities and the protection of war victims. Nevertheless, a time of war does notsuspend operation of the Convention Against Torture. The Convention Against Torturecontinues to apply even when a State is engaged in armed conflict. 101 For example, a state ofwar could not justify a States torture of individuals during armed conflict. 102

In addition, where the text of the Convention Against Torture provides that obligationsapply to a State Party in any territory under its jurisdiction, such obligations, including theobligations in Articles 2 and 16 to prevent torture and cruel, inhuman, or degrading treatment orpunishment, extend to certain areas beyond the sovereign territory of the State Party, and morespecifically to all places that the State Party controls as a governmental authority. 103

1.6.4 Just War Tradition. The Just War Tradition describes customs, ethical codes, andmoral teachings associated with warfare that military thinkers and philosophers have developedover centuries to seek the moral justification of and the limitations to war. 104

98 Refer to 11.1.2.6 (Occupation and the ICCPR and Other Human Rights Treaties).99 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,1465 UNTS 85.100 Refer to 8.2.1 (Protection Against Violence, Torture, and Cruel Treatment).101 Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the U.N.Committee Against Torture, Nov. 3 28, 2014, Nov. 12, 2014 (Although the law of armed conflict is thecontrolling body of law with respect to the conduct of hostilities and the protection of war victims, a time of wardoes not suspend operation of the Convention Against Torture, which continues to apply even when a State isengaged in armed conflict. The obligations to prevent torture and cruel, inhuman, and degrading treatment andpunishment in the Convention remain applicable in times of armed conflict and are reinforced by complementaryprohibitions in the law of armed conflict.).102 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10,1984, 1465 UNTS 85, 114 (No exceptional circumstances whatsoever, whether a state of war or a threat of war,internal political instability or any other public emergency, may be invoked as a justification of torture.).103 Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the U.N.Committee Against Torture, Nov. 3 28, 2014, Nov. 12, 2014 (In brief, we understand that where the text of theConvention provides that obligations apply to a State Party in any territory under its jurisdiction, such obligations,including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment orpunishment, extend to certain areas beyond the sovereign territory of the State Party, and more specifically to allplaces that the State Party controls as a governmental authority. We have determined that the United Statescurrently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and with respect to U.S.registered ships and aircraft.).104 WILLIAM OBRIEN, THE CONDUCT OF JUST AND LIMITED WAR 4 (1981) (The just-war tradition begins with theefforts of St. Augustine to justify Christian participation in Roman wars. From this foundation, St. Thomas Aquinas

25 The Just War Tradition provides part of the philosophical foundation for the modern lawof war and has considered both jus ad bellum and jus in bello. The Just War Tradition developedcriteria or principles that have provided the foundation for modern jus ad bellum rules. 105Similarly, law of war treaties that provide jus in bello rules, such as the 1949 GenevaConventions, are also rooted in the Just War Tradition. The Just War Tradition remains relevantfor decisions to employ U.S. military forces and in warfighting. 106

1.6.5 Rules of Engagement (ROE). Rules of engagement (ROE) have been defined as[d]irectives issued by competent military authority that delineate the circumstances andlimitations under which United States forces will initiate and/or continue combat engagementwith other forces encountered. 107 ROE are used by States to tailor the rules for the use of forceto the circumstances of a particular operation. 108

ROE reflect legal, policy, and operational considerations, and are consistent with theinternational law obligations of the United States, including the law of war. 109 ROE may restrict

and other Scholastic thinkers developed the Scholastic just-war doctrine. This doctrine reached its mature form bythe time of the writings of Vitoria and Suarez in the sixteenth and seventeenth centuries. Various Protestantmoralists and secular writers dealt with just-war issues during the Reformation, but by the eighteenth century just-war doctrine was becoming a curiosity that was not taken seriously. It remained for the twentieth century reactionagainst total war to spark renewed studies in the just-war tradition.).105 Refer to 1.11.1 (Jus ad Bellum Criteria).106 See, e.g., Barack Obama, Remarks on Accepting the Nobel Peace Prize in Oslo, Dec. 10, 2009, 2009-II PUBLICPAPERS OF THE PRESIDENTS 1799 (And over time, as codes of law sought to control violence within groups, so didphilosophers and clerics and statesmen seek to regulate the destructive power of war. The concept of a just waremerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort or inself-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence.);George H. W. Bush, Remarks at the Annual Convention of the National Religious Broadcasters, Jan. 28, 1991,1991-I PUBLIC PAPERS OF THE PRESIDENTS 70 (Nowhere is this more true than in the Persian Gulf where -- despiteprotestations of Saddam Hussein -- it is not Iraq against the United States, its the regime of Saddam Hussein againstthe rest of the world. Saddam tried to cast this conflict as a religious war, but it has nothing to do with religion perse. It has, on the other hand, everything to do with what religion embodies: good versus evil, right versus wrong,human dignity and freedom versus tyranny and oppression. The war in the Gulf is not a Christian war, a Jewishwar, or a Moslem war; it is a just war. And it is a war with which good will prevail.).107 JOINT PUBLICATION 1-04, Legal Support to Military Operations, GL-3 (Aug. 17, 2011) (rules of engagement.Directives issued by competent military authority that delineate the circumstances and limitations under whichUnited States forces will initiate and/or continue combat engagement with other forces encountered. Also calledROE.).108 For example, Juan Carlos Gomez, Twenty-First-Century Challenges: The Use of Military Forces to CombatCriminal Threats, 88 INTERNATIONAL LAW STUDIES 279, 285-86 (2012) (There must be clear, understandable rulesprovided to military forces on the circumstances under which force may be used and the type and degree of thatforce. This is dependent on the mission assigned to the forces. In Colombia, two differently colored cards are used.A blue card is used when the military unit is engaged in a law enforcement mission. The rules on the blue card arebased on HRL. They provide for the use of force only when no other option is available to accomplish the missionand in self-defense of the person and others. The red card is used in operations against military objectives. Thesecards are based on IHL and permit the offensive use of force, including lethal force if demanded by militarynecessity.).109 J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL124 (1973) (With reference to your inquiry concerning the rules of engagement governing American militaryactivity in Indochina, you are advised that rules of engagement are directives issued by competent military authority

26actions that would be lawful under the law of war, but may not permit actions prohibited by thelaw of war. States have used ROE as part of the implementation of their law of war obligationsduring military operations. 110

1.6.6 Code of Conduct for U.S. Armed Forces. The Code of Conduct is a moral guide forU.S. forces to govern their conduct in resisting capture and their actions in the event they fallinto hostile hands. 111 The Code of Conduct was developed after the Korean War and waspromulgated by Executive Order. 112 The Code of Conduct is consistent with the law of warobligations of the United States, including obligations in the GPW.113

1.7 TREATIES

Treaties are generally defined as international agreements concluded between States in

written form and governed by international law. 114 Under international law, a treaty is bindingupon States that are Parties to it. 115

The United States is a Party to a number of law of war treaties. 116 For many years, theDepartment of State has published annually a listing of treaties and other internationalagreements in force for the United States. This publication has provided helpful informationabout such treaties, including the date of U.S. ratification and a listing of other Parties to eachtreaty.

1.7.1 Treaties Notes on Terminology. Treaties may be titled or referred to by several

other terms in addition to treaty including convention, protocol, or agreement. In the contextof the law of war, protocol often refers to an agreement that supplements or updates anexisting agreement.

1.7.1.1 Treaties Under U.S. Constitutional Law. Under the Constitution, a

treaty must receive the advice and consent of the Senate before U.S. ratification or accession.Certain international agreements, such as Executive agreements, are not classified as treaties

which delineate the circumstances and limitations under which United States Forces will initiate and/or continuecombat engagement with the enemy. These rules are the subject of constant review and command emphasis. Theyare changed from time to time to conform to changing situations and the demands of military necessity. One criticaland unchanging factor is their conformity to existing international law as reflected in the Hague Conventions of1907 and the Geneva Conventions of 1949, as well as with the principles of customary international law of whichUNGA Resolution 2444 (XXIII) is deemed to be a correct restatement.).110 Refer to 5.1.2 (Adherence to Law of War Obligations in the Conduct of Hostilities During Military Operations).111 Refer to 9.39 (Code of Conduct for U.S. Armed Forces).112 Refer to 9.39.2 (Background on the U.S. Code of Conduct).113 Refer to 9.39.1 (Text of the Code of Conduct and Discussion).114 Consider, e.g., VCLT art. 1(a) ([T]reaty means an international agreement concluded between States in writtenform and governed by international law, whether embodied in a single instrument or in two or more relatedinstruments and whatever its particular designation;).115 Refer to 1.10.1.1 (Legal Force of Treaties Among States).116 Refer to 19.2.1 (Law of War Treaties to Which the United States Is a Party).

27for the purposes of this requirement, although they may be characterized as treaties for thepurposes of international law and impose obligations upon the United States. 117

1.7.2 Reservations to Treaties. A State may limit the application of provisions of a treatyby reservation upon ratification of the treaty as long as the treaty does not prohibit suchreservations and the reservation is compatible with the object and purpose of the treaty. 118 Forexample, the United States has taken a reservation to certain provisions of CCW Protocol III onIncendiary Weapons. 119 On the other hand, for example, the Chemical Weapons Conventionexpressly prohibits reservations to the Convention and prohibits reservations to the ConventionsAnnexes that are incompatible with its object and purpose. 120

1.7.3 Withdrawal From Treaties. Under certain circumstances, States may withdrawfrom treaties. 121 Some law of war and arms control treaties specify the conditions under whichParties may withdraw from them. 122 Even upon denunciation of a treaty, States remain bound bycustomary international law, including law of war principles. 123

State practice in the application of a treaty provision may be taken into account wheninterpreting that provision. 124 Subsequent State practice is important as an element of117 See, e.g., Weinberger v. Rossi, 456 U.S. 25, 29-30 (1982) (The word treaty has more than one meaning.Under principles of international law, the word ordinarily refers to an international agreement concluded betweensovereigns, regardless of the manner in which the agreement is brought into force. Under the United StatesConstitution, of course, the word treaty has a far more restrictive meaning. Article II, 2, cl. 2, of that instrumentprovides that the President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,provided two thirds of the Senators present concur.) (internal citation omitted).118 Consider VCLT art. 19 (A State may, when signing, ratifying, accepting, approving or acceding to a treaty,formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that onlyspecified reservations, which do not include the reservation in question, may be made; or (c) in cases not failingunder subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.). Seealso William P. Rogers, Letter of Submittal, Oct. 18, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THEVCLT 2 (Part 2 of Section II sets forth the rules on reservations to treaties (Articles 19-23). The articles reflectflexible current treaty practice with regard to multilateral treaties as generally followed since World War II. Theearlier traditional rule on reservations had been that in order for a State to become party to a multilateral treaty witha reservation the unanimous consent of the other parties was required. That rule has given way in practice to a moreflexible approach particularly after the International Court of Justice in 1951 handed down its Advisory Opinion onReservations to the Genocide Convention.).119 Refer to 6.14.3.2 (U.S. Reservation to CCW Protocol III on Incendiary Weapons).120 Refer to 19.22 (Chemical Weapons Convention).121 Consider VCLT art. 54 (The termination of a treaty or the withdrawal of a party may take place: (a) inconformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation withthe other contracting States.).122 See, e.g., CCW art. 9(1) (Any High Contracting Party may denounce this Convention or any of its annexedProtocols by so notifying the Depositary.); GWS art. 63 (Each of the High Contracting Parties shall be at liberty todenounce the present Convention.).123 Refer to 19.8.3 (Martens Clause).124 Consider VCLT art. 31(3) (There shall be taken into account, together with the context: (b) Any subsequentpractice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;).See also I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 199 (325(2)) (1987) (Any

28interpretation when it constitutes objective evidence of the understanding of the Parties as to themeaning of the treaty. 125 For example, the subsequent practice of States in the application of theGWS-Seas requirements for hospital ships has clarified that States may use hospital ships withthe capability to conduct encrypted communications. 126

1.7.5 Treaties and Domestic Implementing Legislation. States may enact domesticlegislation to implement treaty provisions. Although such implementing legislation is notinternational law, it may reflect a States interpretation of those provisions. 127

A States domestic implementing legislation, or lack of such legislation, however, does

not justify that States noncompliance with an international obligation as a matter of internationallaw. 128

1.8 CUSTOMARY INTERNATIONAL LAW

Customary international law results from a general and consistent practice of States thatis followed by them from a sense of legal obligation (opinio juris). 129 Customary internationallaw is an unwritten form of law in the sense that it is not created through a written agreement byStates.

subsequent agreement between the parties regarding the interpretation of the agreement, and subsequent practicebetween the parties in the application of the agreement, are to be taken into account in its interpretation.); IRESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 203 (325, comment c) (1987) (Thisconforms to United States modes of interpretation, affirming that subsequent practice of the parties can be takeninto account in interpreting international agreements.).125 See II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 221 (15) (1966) (The importance of suchsubsequent practice in the application of the treaty, as an element of interpretation, is obvious; for it constitutesobjective evidence of the understanding of the parties as to the meaning of the treaty. Recourse to it as a means ofinterpretation is well-established in the jurisprudence of international tribunals.). See also Case ConcerningKasikili/Sedudu Island (Botswana v. Namibia), Judgment, 1999 I.C.J. 1045, 1075-76 (49) (same); Russian Claimfor Interest on Indemnities (The Russian Indemnity Case), Russia/Turkey, 11 R.I.A.A. 421, 433 (1912) PermanentCourt of Arbitration Unofficial English Translation, 3 (Whereas the fulfilment of obligations is, between States asbetween individuals, the surest commentary on the meaning of these obligations;); Case Concerning The Temple ofPreah Vihear (Cambodia v. Thailand), Merits, Judgment, 1962 I.C.J. 6, 34 (The map was accepted by the Parties in1908 and thereafter as constituting the result of the interpretation given by the two Governments to the delimitationwhich the Treaty itself required. In other words, the Parties at that time adopted an interpretation of the treatysettlement which caused the map line, in so far as it may have departed from the line of the watershed, to prevailover the relevant clause of the treaty.).126 Refer to 7.12.2.7 (Use of Secret Codes for Communication).127 See United States v. Navarre, 173 U.S. 77, 79 (1899) (noting that [i]f the meaning of the treaty was doubtful, itwas competent for Congress to resolve the doubt in its enactment of legislation).128 Refer to 1.10.1.4 (Force of International Law Notwithstanding a States Domestic Law).129 See I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 24 (102(2)) (1987)(Customary international law results from a general and consistent practice of states followed by them from a senseof legal obligation.).

29 Customary international law is generally binding on all States, but States that have beenpersistent objectors to a customary international law rule during its development are not boundby that rule. 130

Assessing whether State practice and opinio juris have resulted in a rule of customaryinternational law may be a difficult inquiry. 131

1.8.1 Relationship Between Treaties and Customary International Law. Treaty

provisions may, inter alia: (1) not reflect customary international law; (2) reflect customaryinternational law; or (3) be based on customary law, but not precisely reflect it.

In most cases, treaty provisions do not reflect customary international law. For example,AP Is provisions changing which persons would be entitled to the privileges of combatant statuswere viewed as novel at the time of the adoption of AP I and as not reflecting customaryinternational law. 132

In some cases, a treaty provision may reflect customary international law. The rulereflected in the treaty would thus be understood to be binding, even if the treaty provision wasnot applicable, because the rule maintains a separate existence as a customary norm. 133 Forexample, provisions of Hague IV and the Hague IV Regulations have been found to reflectcustomary international law. 134 Law of war treaties have specified that customary law andprinciples continue to apply even if the treaty is not applicable. 135

A treaty provision may be based on an underlying principle that is an accepted part of

customary law, but the precise language of the treaty provision may not reflect customaryinternational law because there may be considerable disagreement as to the precise statement of

130 Refer to 1.10.1.2 (Legal Force of Customary International Law Among States).131 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on theRelation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at theSixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 421-22 (1987)(Having described the reasons why I believe that the topic of this Workshop is important and very relevant todecisions currently being taken with respect to Protocol I in the United States and other governments, it is of coursemuch more difficult to say exactly which of the rules contained in the Protocol currently are in fact a part ofcustomary law. As I am sure you all appreciate quite well, there is no clear line drawn in the dust for all to seebetween those principles that are now customary law and those which have not yet attained the degree of acceptanceand observance that might make them customary law. Instead, there are degrees of acceptance and degrees ofobservance, and the judgment as to what degree of each is sufficient for establishment as customary law isinherently subjective and hard to define precisely.).132 Refer to, e.g., 4.6.1.2 (AP I and the GPW 4A(2) Conditions).133 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment,1986 I.C.J. 14, 95 (178) ([E]ven if two norms belonging to two sources of international law appear identical incontent, and even if the States in question are bound by these rules both on the level of treaty-law and on that ofcustomary international law, these norms retain a separate existence.).134 Refer to 19.8.2.1 (Hague IV and Customary International Law).135 Refer to 19.8.3 (Martens Clause).

30that underlying principle. 136 For example, the United States has expressed support for thecustomary principle on which Article 51(3) of AP I is based, but has noted that Article 51(3) ofAP I, as drafted, does not reflect customary international law. 137

1.8.2 State Practice. One part of determining whether a purported rule is customaryinternational law is to analyze whether there is a general and consistent practice of States thatsupports the purported rule.

An analysis of State practice to determine whether a purported rule reflects the customaryinternational law of war should include consideration of, inter alia: (1) whether the Statepractice is extensive and virtually uniform; (2) actual operational practice; (3) the practice ofspecially affected States; and (4) contrary practice.

1.8.2.1 Extensive and Virtually Uniform. State practice should be sufficiently

dense and consistent to meet the extensive and virtually uniform standard generally requiredfor existence of a customary rule. 138

1.8.2.2 Actual Operational Practice. An analysis of State practice should include

an analysis of actual operational practice by States during armed conflict. Although manuals orother official statements may provide important indications of State behavior, they cannotreplace a meaningful assessment of operational State practice. 139

136 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on theRelation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at theSixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 422 (1987) (Inaddition, it may be possible in many cases to say that a general principle is an accepted part of customary law, but tohave considerable disagreement as to the precise statement of that general principle.).137 Refer to 5.9.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities).138 See, e.g., Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator RichardG. Lugar, in Libya and War Powers: Hearing Before the Committee on Foreign Relations, U.S. Senate, 112thCongress, First Session, 53, 57 (Jun. 28, 2011) (Determining that a principle has become customary internationallaw requires a rigorous legal analysis to determine whether such principle is supported by a general and consistentpractice of states followed by them from a sense of legal obligation. Although there is no precise formula to indicatehow widespread a practice must be, one frequently used standard is that state practice must be extensive andvirtually uniform, including among States particularly involved in the relevant activity (i.e., specially affectedStates).); North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic ofGermany v. Netherlands), 1969 I.C.J. 3, 43 (74) (Although the passage of only a short period of time is notnecessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what wasoriginally a purely conventional rule, an indispensable requirement would be that within the period in question, shortthough it might be, State practice, including that of States whose interests are specially affected, should have beenboth extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred insuch a way as to show a general recognition that a rule of law or legal obligation is involved.).139 U.S. RESPONSE TO ICRC CIHL STUDY 515 (Second, we are troubled by the type of practice on which the Studyhas, in too many places, relied. Our initial review of the State practice volumes suggests that the Study places toomuch emphasis on written materials, such as military manuals and other guidelines published by States, as opposedto actual operational practice by States during armed conflict. Although manuals may provide important indicationsof State behavior and opinio juris, they cannot be a replacement for a meaningful assessment of operational Statepractice in connection with actual military operations. We also are troubled by the extent to which the Study relies

31 1.8.2.3 Specially Affected States. The practice of States whose interests arespecially affected, e.g., States with a distinctive history of participation in the relevant matter,must support the purported rule. 140 States that have had a wealth of experience, or that haveotherwise had significant opportunities to develop a carefully considered military doctrine, maybe expected to have contributed a greater quantity and quality of State practice relevant to thelaw of war than States that have not.

For example, specially affected States could include, depending upon the relevantmatter, the nuclear powers, other major military powers, and occupying or occupied States. 141As a case in point, the United Kingdom has been viewed as a specially affected State withrespect to the law of the sea. 142

States that does not support the purported rule, must be considered in assessing whether that ruleexists as a rule of customary international law. 143

on non-binding resolutions of the General Assembly, given that States may lend their support to a particularresolution, or determine not to break consensus in regard to such a resolution, for reasons having nothing to do witha belief that the propositions in it reflect customary international law.).140 See U.S. RESPONSE TO ICRC CIHL STUDY 517 endnote 3 (Not every State that has participated in an armedconflict is specially affected; such States do generate salient practice, but it is those States that have a distinctivehistory of participation that merit being regarded as specially affected.); Written Statement of the Government ofthe United States of America, 28-29, Jun. 20, 1995, I.C.J., Request by the United Nations General Assembly for anAdvisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (Evidence of a customary normrequires indication of extensive and virtually uniform State practice, including States whose interests are speciallyaffected. With respect to the use of nuclear weapons, customary law could not be created over the objection ofthe nuclear-weapon States, which are the States whose interests are most specially affected.).141 Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AJIL238, 249 (1996) (A broader question, however, concerns the degree of weight to be assigned to the practice ofvarious states in the formation of the international customary law of war. I find it difficult to accept the view,sometimes advanced, that all states, whatever their geographical situation, military power and interests, inter alia,have an equal role in this regard. Belligerency is only one factor here. The practice and opinion of Switzerland, forexample, as a neutral state, surely have more to teach us about assessment of customary neutrality law than thepractice of states that are not committed to the policy of neutrality and have not engaged in pertinent nationalpractice. The practice of specially affected states -such as nuclear powers, other major military powers, andoccupying and occupied states-which have a track record of statements, practice and policy, remains particularlytelling. I do not mean to denigrate state equality, but simply to recognize the greater involvement of some states inthe development of the law of war, not only through operational practice but through policies expressed, forexample, in military manuals.).142 See, e g., The Paquete Habana, 175 U.S. 677, 719 (1900) (Fuller, J., dissenting) (noting that [i]t is difficult toconceive of a law of the sea of universal obligation to which Great Britain has not acceded.).143 For example, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 311, 311-12(Dissenting Opinion of Vice-President Schwebel) (One way of surmounting the antinomy between practice andprinciple would be to put aside practice. That is what those who maintain that the threat or use of nuclear weaponsis unlawful in all circumstances do. State practice demonstrates that nuclear weapons have been manufacturedand deployed by States for some 50 years; that in that deployment inheres a threat of possible use; and that theinternational community, by treaty and through action of the United Nations Security Council, has, far fromproscribing the threat or use of nuclear weapons in all circumstances, recognized in effect or in terms that in certaincircumstances nuclear weapons may be used or their use threatened.).

32 In addition, the persistent objection of States may be relevant after the formation of thatrule by preventing the application of that rule to States that have objected to that rule during itsdevelopment. 144

1.8.3 Opinio Juris. In addition to analyzing State practice, one must determine whetherthe State practice results from a sense of legal obligation (opinio juris) or merely reflects Statespolicy or practical interests. Opinio juris cannot simply be inferred from consistent Statepractice, which may exist for reasons other than opinio juris.145 For example, the fact thatnuclear weapons have not been used to conduct attacks during armed conflict since 1945 doesnot reflect a prohibition in customary international law against their use because such lack of usehas not resulted from opinio juris. 146

1.8.3.1 Potential Sources of Opinio Juris. It may be difficult to find evidence of

opinio juris, and care should be exercised in assessing whether a source reflects opinio juris onthe part of a State. For example, treaty provisions do not necessarily reflect opinio juris. 147Similarly, rather than indicating a position expressed out of a sense of a customary legalobligation, a States military manual often recites requirements applicable to that State undertreaties to which it is a Party, or provides guidance to its military forces for reasons of nationalpolicy. 148

144 Refer to 1.8.4 (Objection During Development).145 U.S. RESPONSE TO ICRC CIHL STUDY 515 (Although the same action may serve as evidence both of Statepractice and opinio juris, we do not agree that opinio juris simply can be inferred from practice. Both elementsinstead must be assessed separately in order to determine the presence of a norm of customary international law.).146 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 253-54 (65-67)(States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate theexistence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilization of nuclearweapons by States since 1945 and they would see in that practice the expression of an opinio juris on the part ofthose who possess such weapons. Some other States, which assert the legality of the threat and use of nuclearweapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument.They recall that they have always, in concert with certain other States, reserved the right to use those weapons in theexercise of the right to self-defence against an armed attack threatening their vital security interests. In their view, ifnuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merelybecause circumstances that might justify their use have fortunately not arisen. The Court does not intend topronounce here upon the practice known as the policy of deterrence. It notes that it is a fact that a number ofStates adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, themembers of the international community are profoundly divided on the matter of whether non-recourse to nuclearweapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances the Courtdoes not consider itself able to find that there is such an opinio juris.).147 U.S. RESPONSE TO ICRC CIHL STUDY 515 (One therefore must be cautious in drawing conclusions as to opiniojuris from the practice of States that are parties to conventions, since their actions often are taken pursuant to theirtreaty obligations, particularly inter se, and not in contemplation of independently binding customary internationallaw norms.).148 U.S. RESPONSE TO ICRC CIHL STUDY 516 (We are troubled by the Studys heavy reliance on military manuals.We do not agree that opinio juris has been established when the evidence of a States sense of legal obligationconsists predominately of military manuals. Rather than indicating a position expressed out of a sense of acustomary legal obligation, in the sense pertinent to customary international law, a States military manual often(properly) will recite requirements applicable to that State under treaties to which it is a party. Reliance on

33 1.8.4 Objection During Development. Even if a rule otherwise reflects customaryinternational law, the rule is not binding upon a State that has persistently objected to that ruleduring its development. 149 This principle is an accepted application of the traditional principlethat international law essentially depends on the consent of States. 150

1.9 SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW

As a subsidiary means, it may be helpful to consult judicial decisions and the teachings ofthe most highly qualified publicists of various nations in determining the applicable rules ofinternational law. These means are subsidiary in the sense that they do not, in themselves,constitute sources of treaty or customary international law.

Discretion must be exercised in weighing sources, however, because sources vary

significantly in their probative value. For example, the United States has said that it is not in aposition to accept without further analysis the conclusions in a study on customary internationalhumanitarian law published by the ICRC. 151

1.9.1 Judicial Decisions. Judicial decisions have sometimes been used as a subsidiarymeans of determining the rules of international law. 152

Judicial decisions are generally consulted as only persuasive authority because a

judgment rendered by an international court generally binds only the parties to the case in respect

provisions of military manuals designed to implement treaty rules provides only weak evidence that those treatyrules apply as a matter of customary international law in non-treaty contexts.).149 See Fisheries Case, (United Kingdom v. Norway), Judgment, 1951 I.C.J. 116, 131 (In these circumstances theCourt deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in theirnational law and in their treaties and conventions, and although certain arbitral decisions have applied it as betweenthese States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired theauthority of a general rule of international law. In any event the ten-mile rule would appear to be inapplicable asagainst Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.); AsylumCase (Colombia v. Peru), 1950 I.C.J. 266, 277-78 (The Court cannot therefore find that the Colombian Governmenthas proved the existence of such a custom. But even if it could be supposed that such a custom existed betweencertain Latin-American States only, it could not be invoked against Peru which, far from having by its attitudeadhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomaticasylum.). See also U.S. RESPONSE TO ICRC CIHL STUDY 529 endnote 38 (We note that the Study raises doubtsabout the continued validity of the persistent objector doctrine. Study, Vol. I, p. xxxix. The U.S. Governmentbelieves that the doctrine remains valid.).150 I RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 32 (102, Reporters Note 2)(1987) (That a rule of customary law is not binding on any state indicating its dissent during the development of therule (Comment d) is an accepted application of the traditional principle that international law essentially depends onthe consent of states.).151 Refer to 19.25 (2005 ICRC Study on Customary International Humanitarian Law).152 ICJ STATUTE art. 38(1) (The Court, whose function is to decide in accordance with international law suchdisputes as are submitted to it, shall apply: d. subject to the provisions of Article 59, judicial decisions assubsidiary means for the determination of rules of law.).

34of that particular case. 153 The legal reasoning underlying the decisions of the International Courtof Justice is not binding on States. 154 Similarly, the decisions of the International CriminalTribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda cannot,as a strictly legal matter, bind other courts. 155

The legal principle of stare decisis does not generally apply between internationaltribunals, i.e., customary international law does not require that one international tribunal followthe judicial precedent of another tribunal in dealing with questions of international law. 156Moreover, depending on the international tribunal, a tribunal may not be bound by its priordecisions. Some international courts, however, may adhere to their own prior decisions inresolving a case absent a sufficiently persuasive reason to reconsider the point of law. 157

153 See, e.g., ICJ STATUTE art. 59 (The decision of the Court has no binding force except between the parties and inrespect of that particular case.).154 John B. Bellinger, III, Department of State Legal Adviser, 2006 DIGEST OF UNITED STATES PRACTICE ININTERNATIONAL LAW 1024 (We believe that these concerns were largely borne out in the advisory opinionrendered by the Court. In practice, the opinion has made little meaningful contribution to efforts to resolve issuesbetween the Israelis and Palestinians. Also, the Courts opinion is open to criticism on its treatment of both factualand legal issues, in some cases due more to process than to any fault on the part of the Court. For example, the factthat the General Assembly had already declared itself on many of the issues, risks creating the impression that theCourt was being used to advance a particular set of political claims. Also of concern are efforts in some quarters tosuggest that aspects of the Courts advisory opinion, such as that relating to the extraterritorial application of theInternational Covenant on Civil and Political Rights, have binding force on member states in contexts that gobeyond those addressed in the advisory opinion. This of course, is not the case. Under the ICJ statute, states arebound only by the decisionsand not by the Courts reasoning underlying those decisionsin contentious cases towhich they are parties, and advisory opinions have no binding force at all, but rather serve to provide guidance onlegal questions to the UN organ or specialized agency requesting them.).155 Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the VeraInstitute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 61, 67 (The ICTY and ICTR began developing a modern jurisprudence ofcriminal liability that was based on existing law as applied to a modern ethnic conflict. One of the ICTYs earlyaccomplishments was the Dusko Tadic case, which involved a relatively low-level offender who -- had he beencaught only a few years later -- would have been referred to Bosnia for domestic prosecution. The Tadic decisionprovided a reasoned basis for the seminal conclusions that (1) the UN Security Council had the authority to set up acriminal court under Chapter VII of the UN Charter; (2) the tribunals jurisdiction extended to war crimescommitted in the course of a non-international armed conflict; and (3) Tadic could be convicted for his associationwith a small group of offenders, articulating the concept of joint criminal enterprise (JCE) that later became acentral feature of the ICTYs work. The post-WWII tribunals had largely ignored sexual violence, but the ICTYand ICTR situated the issue within the existing law of war crimes, crimes against humanity, and genocide. Althoughthese decisions cannot, as a strictly legal matter bind other courts, there is no doubt that the jurisprudence of theICTY and ICTR has been influential in the broader development of international criminal law.).156 I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 36-37 (103, comment b) (1987)(That provision [Article 59 of the Statute of the ICJ] reflects the traditional view that there is no stare decisis ininternational law.).157 See, e.g., Prosecutor v. Aleksovski, ICTY Appeals Chamber, IT-95-14/1-A, Judgment, 107-109 (Mar. 24,2000) ([I]in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions,but should be free to depart from them for cogent reasons in the interests of justice. It is necessary to stress thatthe normal rule is that previous decisions are to be followed, and departure from them is the exception. The AppealsChamber will only depart from a previous decision after the most careful consideration has been given to it, both asto the law, including the authorities cited, and the facts.).

35 1.9.2 Legal Writings of Highly Qualified Publicists. The writings of the most highlyqualified publicists have sometimes been used as a subsidiary means of determining the rules ofinternational law. 158 For example, classical publicists, such as Hugo Grotius and Emmerich deVattel, and recognized scholars, such as Francis Lieber and Hersch Lauterpacht, have beenwidely cited and relied upon as practitioners have sought to interpret and apply the law of war.

The standard for whose writings should be relied upon is high, and writings are only asauthoritative as the evidence upon which they are based. The writings should only be reliedupon to the degree they accurately reflect existing law, rather than the authors views about whatthe law should be. 159

1.10 LEGAL FORCE OF THE LAW OF WAR

This section addresses the technical legal force of the law of war under international andU.S. domestic law. As a matter of policy, DoD personnel may be required to adhere to law ofwar rules, even where the rules do not technically apply as a matter of law. 160

1.10.1 Legal Force of the Law of War Under International Law. The technical force of alaw of war rule depends on whether it takes the form of a treaty or customary international law.

1.10.1.1 Legal Force of Treaties Among States. Under international law, everytreaty in force is binding upon the Parties to it and must be performed by them in good faith. 161A treaty enters into force for a State after, inter alia, it has provided its consent to be bound bythe treaty. 162 In some cases, the terms of a treaty may cause it to expire, and in other cases,

158 ICJ STATUTE art. 38(1) (The Court, whose function is to decide in accordance with international law suchdisputes as are submitted to it, shall apply: d. subject to the provisions of Article 59, the teachings of the mosthighly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.).159 See The Paquete Habana, 175 U.S. 677, 700 (1900) (For this purpose, where there is no treaty, and nocontrolling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilizednations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research andexperience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works areresorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but fortrustworthy evidence of what the law really is.).160 Refer to 3.1.1 (DoD Practice of Applying Law of War Rules Even When Not Technically Applicable).161 Consider VCLT art. 26 (Every treaty in force is binding upon the parties to it and must be performed by them ingood faith.).162 Consider VCLT art. 24 (1. A treaty enters into force in such manner and upon such date as it may provide or asthe negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon asconsent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a Stateto be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force forthat State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating theauthentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date ofits entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entryinto force of the treaty apply from the time of the adoption of its text.). See also DEPARTMENT OF THE ARMYPAMPHLET 27-161-1, I International Law: Law of Peace, 8-12 (Sept. 1, 1979) (An international agreement isbasically a contract between states, and elements of obligation akin to those found in municipal contract law arepresent. However, as discussed in Part I, a treaty is not a contract in the common law sense of an agreementrequiring consideration. It is the assent to be bound and not reciprocity or quid pro quo that obligates the parties.).

36States may withdraw from a treaty. 163 In some cases, a reservation may also modify theobligations imposed by a treaty on that State. 164

A treaty does not create either obligations or rights for a third State without its consent. 165Thus, a treaty generally would not be binding on non-Parties to the treaty or create rights orobligations for a non-Party to the treaty with respect to a Party to the treaty. Instead, a treatyonly creates law (i.e., rights that may be invoked) as between the States that are Parties to it. 166

1.10.1.2 Legal Force of Customary International Law Among States. The

customary law of war generally binds all States. However, States that have objected to acustomary international law rule during its development are not bound by that rule. 167

International obligations are generally viewed as running to other States, although individualsmay have responsibility under international law.

Traditionally, international law has governed relations between States, although over timeit has increasingly regulated the relationships between States and persons. Under the traditionalview, a States international law obligations run to other States, even when the obligations relateto an individual (e.g., by protecting that individual), such that individuals place in internationallife depends largely on their status as nationals of states. 168 For example, the 1949 GenevaConventions and the customary law of war do not provide a private right for individuals to claimcompensation directly from a State for violations of the law of war; rather, such claims are madeby other States. 169

International law has long prescribed certain rules regulating the conduct ofindividuals. 170 Under international law, there may be responsibility for individuals, apart from

163 Refer to 1.7.3 (Withdrawal From Treaties).164 Refer to 1.7.2 (Reservations to Treaties).165 Consider VCLT art. 34 (A treaty does not create either obligations or rights for a third State without itsconsent.).166 Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland) 1925 P.C.I.J.(series A) No. 7, at 29 (A treaty only creates law as between the States which are parties to it; in case of doubt, norights can be deduced from it in favour of third States.).167 Refer to 1.8.4 (Objection During Development).168 I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 71 (1987). See also IIRESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 217 (713, comment a) (1987)(explaining that in principle, state responsibility for injury to the nationals of other states is to the state of thealiens nationality and gives that state a claim against the offending state. The claim derives from injury to anindividual, but once espoused it is the states claim, and can be waived by the state.).169 Refer to 18.16.4 (No Private Right to Compensation Under Customary International Law or the 1949 GenevaConventions).170 See Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004) (noting that international law has included a body ofjudge-made law regulating the conduct of individuals situated outside domestic boundaries and rules bindingindividuals for the benefit of other individuals [that] overlapped with the norms of state relationships).

37State responsibility. 171

1.10.1.4 Force of International Law Notwithstanding a States Domestic Law. A

States domestic law does not justify that States noncompliance with an international obligationas a matter of international law. 172 Similarly, the fact that a States domestic law does notprovide for a penalty with respect to a violation of international law does not relieve a personfrom responsibility for that act under international law. 173

1.10.2 Force of the Law of War Under U.S. Domestic Law. The specific legal force of alaw of war rule under U.S. domestic law may depend on whether that rule takes the form of aself-executing treaty, non-self-executing treaty, or customary international law.

Longstanding DoD policy has been to require DoD personnel to comply with the law ofwar obligations of the United States. 174

Even if a violation of a rule is not directly punishable under U.S. law, a variety of tools inU.S. domestic law may be used to enforce a law of war obligation of the United States. Forexample, a violation of a law of war obligation may be made punishable through implementationof the obligation in military instructions, regulations, and procedures. 175

1.10.2.1 Force of Self-Executing and Non-Self-Executing Treaties Under U.S.

Domestic Law. Under domestic law, treaties to which the United States is a Party are part ofU.S. law. 176

The terms self-executing and non-self-executing may be used to explain how a treatyis to take effect in U.S. domestic law. A treaty may be classified as a self-executing treaty thatoperates of itself, without the aid of any legislative provision, or as a non-self-executing treatythat would require that the Legislature must execute the contract before it can become a rule forthe Court. 177

171 Refer to 18.22.1 (Individual Criminal Responsibility for Acts Constituting Crimes Under International Law).172 Secretary of State Bayard, Instruction to Mr. Connery, charge to Mexico, Nov. 1, 1887, II MOORES DIGEST 235([A] government can not appeal to its municipal regulations as an answer to demands for the fulfillment ofinternational duties. Such regulations may either exceed or fall short of the requirements of international law, and ineither case that law furnishes the test of the nations liability and not its own municipal rules.). Consider VCLT art.27 (A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Thisrule is without prejudice to article 46.).173 Refer to 18.22.2 (Absence of Penalty Under Domestic Law Does Not Relieve a Person of Responsibility).174 Refer to 18.1.1 (DoD Policy on Implementing and Enforcing the Law of War).175 Refer to 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).176 See U.S. CONSTITUTION art. VI (This Constitution, and the laws of the United States which shall be made inpursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall bethe supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution orlaws of any State to the contrary notwithstanding.).177 Foster & Elam v. Neilson 27 U.S. 253, 314 (1829) (Marshall, C.J.). See also Whitney v. Robertson, 124 U.S.190, 194 (1888) (A treaty is primarily a contract between two or more independent nations, and is so regarded bywriters on public law. For the infraction of its provisions a remedy must be sought by the injured party through

38 1.10.2.2 Force of Customary International Law Under U.S. Domestic Law. Thecustomary law of war is part of U.S. law insofar as it is not inconsistent with any treaty to whichthe United States is a Party, or a controlling executive or legislative act. 178

1.11 JUS AD BELLUM

The law of war has been categorized into jus ad bellum (law concerning the resort toforce) and jus in bello (law concerning conduct during war). 179 Although jus ad bellum is anessential part of the law of war to consider in the political process of whether to resort to militaryforce, this manual focuses on jus in bello. 180 Although jus in bello rules generally operateindependently of whether a side has comported with jus ad bellum in the resort to force, parts ofjus ad bellum are relevant to jus in bello. 181

This section provides a brief overview of some basic aspects of jus ad bellum. Jus adbellum issues might raise questions of national policy that, in the Executive Branch, would bedecided by the President. In U.S. practice, legal advice provided to national-level principalofficials on such issues generally would need to be addressed through interagency discussionscoordinated by the legal adviser to the National Security Council, including consultation andcoordination among senior counsel of relevant U.S. departments and agencies.

1.11.1 Jus ad Bellum Criteria. Certain jus ad bellum criteria have, at their philosophicalroots, drawn from principles that have been developed as part of the Just War Tradition. 182These principles have included:

reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant tolegislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congressas legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require nolegislation to make them operative, to that extent they have the force and effect of a legislative enactment.);Medellin v. Texas, 552 U.S. 491, 525-26 (2008) (The responsibility for transforming an international obligationarising from a non-self-executing treaty into domestic law falls to Congress.).178 The Paquete Habana, 175 U.S. 677, 700 (1900) (International law is part of our law, where there is no treatyand no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages ofcivilized nations,).179 See, e.g., WILLIAM OBRIEN, THE CONDUCT OF JUST AND LIMITED WAR 9 (1981) (defining jus ad bellum as thedoctrines concerning permissible recourse to war and jus in bello as the just conduct of war); MICHAELWALZER, JUST AND UNJUST WARS 21 (1977) (War is always judged twice, first with reference to the reasons stateshave for fighting, secondly with reference to the means they adopt. The first kind of judgment is adjectival incharacter: we say that a particular war is just or unjust. The second is adverbial: we say that a war is being foughtjustly or unjustly. Medieval writers made the difference a matter of prepositions, distinguishing jus ad bellum, thejustice of war, from jus in bello, justice in war.). But see Robert Kolb, Origin of the twin terms jus ad bellum/jus inbello, 37 INTERNATIONAL REVIEW OF THE RED CROSS 553 (Sept.-Oct. 1997) (The august solemnity of Latin conferson the terms jus ad bellum and jus in bello the misleading appearance of being centuries old. In fact, theseexpressions were only coined at the time of the League of Nations and were rarely used in doctrine or practice untilafter the Second World War, in the late 1940s to be precise.).180 Refer to 1.1.2 (Scope).181 Refer to 3.5 (Relationship Between Jus in Bello and Jus ad Bellum).182 Refer to 1.6.4 (Just War Tradition).

39 a competent authority to order the war for a public purpose;

a just cause (such as self-defense);

the means must be proportionate to the just cause;

all peaceful alternatives must have been exhausted; and

a right intention on the part of the just belligerent. 183

These principles may be reflected in modern law of war rules. For example, the Charterof the United Nations recognizes the inherent right of States to use force in individual orcollective self-defensea just cause for military action. 184

These principles have also been incorporated into military doctrine. 185

1.11.1.1 Competent Authority (Right Authority) to Wage War for a Public

Purpose. One longstanding criterion for a just war is that war must be ordered by a competentauthority for a public purpose. This jus ad bellum principle (sometimes called right authority)acknowledges that the resort to military force is a prerogative of the State. 186

The criterion that war must be ordered by a competent authority for a public purpose isreflected in the requirement that armed groups must belong to a State to receive the privileges ofcombatant status. 187 This criterion is also reflected in the general denial to private persons of theentitlement to the privileges of combatant status. 188 This criterion is also reflected in the

183 WILLIAM OBRIEN, THE CONDUCT OF JUST AND LIMITED WAR 16 (1981) (The decision to invoke theexceptional rights of war must be based on the following criteria: there must be competent authority to order thewar for a public purpose; there must be a just cause (it may be self-defense or the protection of rights by offensivewar) and the means must be proportionate to the just cause and all peaceful alternatives must have been exhausted;and there must be right intention on the part of the just belligerent.).184 Refer to 1.11.4.1 (Use of Force in Self-Defense).185 MARINE CORPS DOCTRINAL PUBLICATION 1-1, Strategy, 93, 95 (1997) ([T]he just war criteria provide objectivemeasures from which to judge our motives. The effective strategist must be prepared to demonstrate to all sideswhy the defended cause meets the criteria of just war theory and why the enemys cause does not. If a legitimateand effective argument on this basis cannot be assembled, then it is likely that both the cause and the strategy arefatally flawed.).186 See Talbot v. Janson, 3 U.S. 133, 160-61 (1795) (Iredell, J., concurring) ([N]o hostilities of any kind, except innecessary self-defence, can lawfully be practised by one individual of a nation, against an individual of any othernation at enmity with it, but in virtue of some public authority. War can alone be entered into by national authority;it is instituted for national purposes, and directed to national objects; and each individual on both sides is engaged init as a member of the society to which he belongs, not from motives of personal malignity and ill will.); VATTEL,THE LAW OF NATIONS 235 (3.1.4) (It is the sovereign power alone, therefore, which has the right to make war.);GROTIUS, LAW OF WAR & PEACE 97 (1.3.4.2) (But because the whole state is endangered by war, provision hasbeen made by the laws of almost every state that war may be waged only under the authority of him who holds thesovereign power in the state.).187 Refer to 4.6.2 (Belonging to a Party to the Conflict).188 Refer to 4.18.3 (Private Persons Who Engage in Hostilities Lack of the Privileges of Combatant Status).

40condemnation under international law of certain types of private acts of hostility (such as piracyor terrorism) outside the context of patriotic resistance against an enemy State duringinternational armed conflict. 189

1.11.1.2 The Means Must Be Proportionate to the Just Cause (Proportionality

Jus ad Bellum). Proportionality involves a weighing of the contemplated actions with thejustification for taking action. 190 For example, the proportionality of the measures taken in self-defense is to be judged according to the nature of the threat being addressed. 191 Force may beused in self-defense, but only to the extent that it is required to repel the armed attack and torestore the security of the party attacked. 192 As an illustration, assessing the proportionality ofmeasures taken in self-defense may involve considerations of whether an actual or imminentattack is part of an ongoing pattern of attacks or what force is reasonably necessary to discouragefuture armed attacks or threats thereof. 193

The jus ad bellum criterion of proportionality is different from the jus in bello rule ofproportionality in conducting attacks. 194 These concepts should not be confused with oneanother. 195

189 Refer to 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).190 Refer to 2.4 (Proportionality).191 William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALEJOURNAL OF INTERNATIONAL LAW 295, 305-06 (2004) (There is no requirement in international law that a Stateexercising its right of self-defense must use the same degree or type of force used by the attacking State in its mostrecent attack. Rather, the proportionality of the measures taken in self-defense is to be judged according to thenature of the threat being addressed . A proper assessment of the proportionality of a defensive use of forcewould require looking not only at the immediately preceding armed attack, but also at whether it was part of anongoing series of attacks, what steps were already taken to deter future attacks, and what force could reasonably bejudged to be needed to successfully deter future attacks.).192 Counter-memorial and Counter-claim Submitted by the United States of America, International Court of Justice,Case Concerning Oil Platforms (Iran v. United States) 141 (4.31) (Jun. 23, 1997) (Actions in self-defense must beproportionate. Force can be used in self-defense, but only to the extent that it is required to repel the armed attackand to restore the security of the party attacked.).193 Herbert S. Okun, Letter Dated 14 April 1986 from the Acting Permanent Representative of the United States ofAmerica to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/17990 (Apr. 14,1986) (The United States objective was to destroy facilities used to carry out Libyas hostile policy of internationalterrorism and to discourage Libyan terrorist attacks in the future. These facilities constituted essential elementswhich have enabled Libyan agents to carry out deadly missions against U.S. installations and innocentindividuals.); Madeleine Albright, Letter Dated 26 June 1993 from the Permanent Representative of the UnitedStates of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/26003 (Jun.26, 1993) (Accordingly, as a last resort, the United States has decided that it is necessary to respond to theattempted attack and the threat of further attacks by striking at an Iraqi military and intelligence target that isinvolved in such attacks. It is the sincere hope of the United States Government that such limited andproportionate action may frustrate future unlawful actions on the part of the Government of Iraq and discourage orpreempt such activities.).194 Refer to 5.12 (Proportionality in Conducting Attacks).195 Refer to 3.5.1 (General Distinction Between Jus in Bello and Jus ad Bellum).

41 1.11.1.3 All Peaceful Alternatives Must Have Been Exhausted (Necessity Jus adBellum). The jus ad bellum condition of necessity requires that no reasonable alternative meansof redress are available. 196 For example, in exercising the right of self-defense, diplomaticmeans must be exhausted or provide no reasonable prospect of stopping the armed attack orthreat thereof. 197

The jus ad bellum criterion of necessity is different from the jus in bello concept ofmilitary necessity. 198

1.11.2 U.N. Charter Framework and the U.N. Security Council. The Charter of theUnited Nations provides the modern treaty framework for jus ad bellum. Under the Charter ofthe United Nations, the U.N. Security Council has primary responsibility for the maintenance ofinternational peace and security. 199 The U.N. Security Council may determine the existence ofany threat to the peace, breach of the peace, or act of aggression, and may decide what measuresshall be taken under the Charter to maintain or restore international peace and security. 200 Forexample, the U.N. Security Council may recognize that a State is acting lawfully in self-defenseor that another State is the aggressor in an armed conflict. 201 In addition, the U.N. SecurityCouncil may authorize the use of military force. 202

196 William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALEJOURNAL OF INTERNATIONAL LAW 295, 304 (2004) (The condition of necessity, rather, requires that noreasonable alternative means of redress are available.).197 For example, Madeleine Albright, Letter Dated 26 June 1993 from the Permanent Representative of the UnitedStates of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/26003 (Jun.26, 1993) (Based on the pattern of the Government of Iraqs behavior, including the disregard for international lawand Security Council resolutions, the United States has concluded that there is no reasonable prospect that newdiplomatic initiatives or economic measures can influence the current Government of Iraq to cease planning futureattacks against the United States. Accordingly, as a last resort, the United States has decided that it is necessary torespond to the attempted attack and the threat of further attacks by striking at an Iraqi military and intelligence targetthat is involved in such attacks.); Thomas R. Pickering, Letter Dated 20 December 1989 from the PermanentRepresentative of the United States of America to the United Nations Addressed to the President of the SecurityCouncil, U.N. Doc. S/21035 (Dec. 20, 1989) (The United States has exhausted every available diplomatic means toresolve peacefully disputes with Mr. Noriega, who has rejected all such efforts. Action by the United States wastaken after Mr. Noriega declared on 15 December that a state of war existed with the United States, and followingbrutal attacks by forces of Mr. Noriega on lawfully present American personnel, murdering one American andinjuring and threatening others.).198 Refer to 2.2 (Military Necessity).199 U.N. CHARTER art. 24(1) (In order to ensure prompt and effective action by the United Nations, its Membersconfer on the Security Council primary responsibility for the maintenance of international peace and security, andagree that in carrying out its duties under this responsibility the Security Council acts on their behalf.).200 U.N. CHARTER art. 39 (The Security Council shall determine the existence of any threat to the peace, breach ofthe peace, or act of aggression and shall make recommendations, or decide what measures shall be taken inaccordance with Articles 41 and 42, to maintain or restore international peace and security.).201 For example, U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc. S/RES/661 (1990) (Affirming the inherentright of individual or collective self-defence, in response to the armed attack of Iraq against Kuwait, in accordancewith Article 51 of the Charter,); U.N. SECURITY COUNCIL RESOLUTION 1368, U.N. Doc. S/RES/1368 (2001)(Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizingthe inherent right of individual or collective self-defence in accordance with the Charter, 1. Unequivocally condemnsin the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York,

42 1.11.2.1 U.N. Member State Obligations With Respect to U.N. Security CouncilDecisions. Members of the United Nations have agreed to give the United Nations everyassistance in any action it takes in accordance with the Charter and to refrain from givingassistance to any State against which the United Nations is taking preventive or enforcementaction. 203

Members of the United Nations have agreed to accept and carry out the decisions of theU.N. Security Council in accordance with the Charter. 204 They have also agreed to join inaffording mutual assistance in carrying out the measures decided upon by the U.N. SecurityCouncil. 205

Moreover, in the event of a conflict between the obligations of the Members of theUnited Nations under the Charter and their obligations under any other international agreement,their obligations under the Charter prevail. 206

1.11.3 Prohibition on Certain Uses of Force. Under Article 2(4) of the Charter of theUnited Nations, [a]ll Members shall refrain in their international relations from the threat or useof force against the territorial integrity or political independence of any State, or in any othermanner inconsistent with the Purposes of the United Nations. 207 Numerous other treaties alsoreflect these prohibitions on the threat or use of force. 208

Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat tointernational peace and security;).202 Refer to 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of theCharter of the United Nations).203 U.N. CHARTER art. 2(5) (All Members shall give the United Nations every assistance in any action it takes inaccordance with the present Charter, and shall refrain from giving assistance to any state against which the UnitedNations is taking preventive or enforcement action.).204 U.N. CHARTER art. 25 (The Members of the United Nations agree to accept and carry out the decisions of theSecurity Council in accordance with the present Charter.).205 U.N. CHARTER art. 49 (The Members of the United Nations shall join in affording mutual assistance in carryingout the measures decided upon by the Security Council.).206 U.N. CHARTER art. 103 (In the event of a conflict between the obligations of the Members of the United Nationsunder the present Charter and their obligations under any other international agreement, their obligations under thepresent Charter shall prevail.).207 U.N. CHARTER art. 2(4).208 See, e.g., Inter-American Treaty of Reciprocal Assistance, art. 1, Sept. 2, 1947, 62 STAT. 1681, 1700 (The HighContracting Parties formally condemn war and undertake in their international relations not to resort to the threat orthe use of force in any manner inconsistent with the provisions of the Charter of the United Nations or of thisTreaty.); Treaty Providing for the Renunciation of War as an Instrument of National Policy, art. 1, Aug. 27, 1928,46 STAT. 2343, 2345-46 (The High Contracting Parties solemnly declare in the names of their respective peoplesthat they condemn recourse to war for the solution of international controversies, and renounce it as an instrument ofnational policy in their relations with one another.).

43 The resort to force must have a legal basis in order not to violate these prohibitions. Thelegality of the use of force must be assessed in light of the particular facts and circumstances atissue. 209

1.11.3.1 Aggression. Aggression is the most serious and dangerous form of theillegal use of force. 210 Not every act of illegal use of force prohibited by Article 2(4) of theCharter constitutes aggression. 211 Initiating a war of aggression is a serious internationalcrime. 212

U.N. General Assembly Resolution 3314 suggested considerations that the SecurityCouncil should bear in mind in determining whether an act of aggression had occurred. 213Although this resolution states basic principles as guidance for such determinations, it recognizesthat whether an act of aggression has been committed must be considered in light of all thecircumstances of each particular case. 214

209 See, e.g., William H. Taft IV, Legal Adviser, Department of State, & Todd F. Buchwald, Assistant Legal Adviserfor Political-Military Affairs, Department of State, Preemption, Iraq, and International Law, 97 AJIL 557 (2003)(In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have madeit necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it.);Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER, THE DIPLOMATIC AND OFFICIALPAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 105 (1848) (It is admitted that a just right of self-defense attaches always to nations as well as to individuals, and is equally necessary for the preservation of both.But the extent of this right is a question to be judged of by the circumstances of each particular case;).210 Definition of Aggression, preamble 5, Annex to U.N. GENERAL ASSEMBLY RESOLUTION 3314 (XXIX),Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (Considering also that, since aggressionis the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by theexistence of all types of weapons of mass destruction, with the possible threat of a world conflict and all itscatastrophic consequences, aggression should be defined at the present stage.).211 Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of theSpecial Committee on the Question of Defining Aggression, Annex 1: Views expressed by members of the SpecialCommittee at the concluding stage of the Special Committees session, U.N. General Assembly Official Records:Twenty-Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22-23 (Mar. 11-Apr. 12, 1974) (Mr.ROSENSTOCK (United States of America) The fifth preambular paragraph, while recognizing the dangerswhich would flow from an illegal use of force amounting to aggression, correctly stated the view that not every actof force in violation of the Charter constituted aggression.).212 United States, et al. v. Gring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 421(To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crimediffering only from other war crimes in that it contains within itself the accumulated evil of the whole.).213 Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of theSpecial Committee on the Question of Defining Aggression, Annex 1: Views expressed by members of the SpecialCommittee at the concluding stage of the Special Committees session, U.N. General Assembly Official Records:Twenty-Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22-23 (Mar. 11-Apr. 12, 1974) (Mr.ROSENSTOCK (United States of America) The text that had been produced was a recommendation of theGeneral Assembly for use by the Security Council. In article 2, the definition suggested the considerations whichthe Security Council should bear in mind in determining whether an act of aggression had occurred.).214 Definition of Aggression, preamble 10, Annex to U.N. GENERAL ASSEMBLY RESOLUTION 3314 (XXIX),Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (Believing that, although the questionwhether an act of aggression has been committed must be considered in the light of all the circumstances of eachparticular case, it is nevertheless desirable to formulate basic principles as guidance for such determination,).

44 The United States has expressed the view that the definition of the act of aggression inthe Kampala amendments to the Rome Statute does not reflect customary international law. 215

1.11.4 Rationales for the Resort to Force.

1.11.4.1 Use of Force in Self-Defense. The right to use force in self-defense is an

inherent right of States. 216

1.11.4.2 Use of Force Authorized by the U.N. Security Council Acting UnderChapter VII of the Charter of the United Nations. Chapter VII of the Charter of the UnitedNations provides that the U.N. Security Council may take such action by air, sea, or land forcesas may be necessary to maintain or restore international peace or security, includingdemonstrations, blockade, and other military operations. 217

1.11.4.3 Use of Force With the Consent of the Territorial State. Military action inthe territory of another State is not a violation of Article 2(4)s prohibition against the use offorce against that State where it consents to such military action. 218

1.11.4.4 Humanitarian Intervention. Violations of law of war treaties applicable

to non-international armed conflict generally have not been understood to provide anindependent basis for intervening in a State. 219

Although the United Kingdom and certain other States have argued that intervention forhumanitarian reasons may be a legal basis for the resort to force, the United States has not

215 Refer to 18.20.3.4 (ICC and the Crime of Aggression).216 Refer to 1.11.5 (Use of Force in Self-Defense).217 U.N. CHARTER art. 42 (Should the Security Council consider that measures provided for in Article 41 would beinadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessaryto maintain or restore international peace and security. Such action may include demonstrations, blockade, andother operations by air, sea, or land forces of Members of the United Nations.).218 For example, Davis R. Robinson, Department of State Legal Adviser, Letter to Professor Edward Gordon,Chairman of the Committee on Grenada Section on International Law and Practice American Bar Association onThe Legal Position of the United States on the Action taken in Grenada (Feb. 10, 1984), reprinted in 18INTERNATIONAL LAWYERS 381 (1984) (In the case of the action taken in Grenada, the legal position of the UnitedStates was based upon the application of a combination of three well established principles of international law(1) the lawful governmental authorities of a State may invite the assistance in its territory of military forces of otherstates or collective organizations in dealing with internal disorder as well as external threats.); Statement of theU.S. Government, attached to Adlai E. Stevenson, Letter Dated 24 November 1964 From the PermanentRepresentative of the United States of America Addressed to the President of the Security Council, U.N. Doc.S/6062, Nov. 24, 1964 (The United States Government has just received confirmation that a short time ago - earlymorning of 24 November in the Congo - a unit of Belgian paratroopers, carried by United States military transportplanes, landed at Stanleyville in the Congo. This landing has been made (1) with the authorization of theGovernment of the Congo, (2) in conformity with our adherence to the Geneva Conventions, and (3) in exercise ofour clear responsibility to protect United States citizens under the circumstances existing in the Stanleyville area.).219 Refer to 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State ArmedGroups Against Other States).

45adopted this legal rationale. 220 Consistent with this view, the United States did not adopt thistheory as a legal rationale for NATOs military action to address the humanitarian catastrophe inKosovo in 1999, but rather expressed the view that such action was justified on the basis of anumber of factors. 221

Military action for humanitarian reasons may, however, be authorized by the U.N.Security Council. 222

1.11.5 Use of Force in Self-Defense. Article 51 of the Charter of the United Nationsprovides that [n]othing in the present Charter shall impair the inherent right of individual orcollective self-defence if an armed attack occurs against a Member of the United Nations, untilthe Security Council has taken measures necessary to maintain international peace andsecurity. 223

220 William H. Taft IV, Legal Adviser, Department of State, Role and Significance of International Law Governingthe Use of Force in the New Global Context Confronting the United States After 9/11: remarks regarding the use offorce under international law (Oct. 27, 2004) (Of particular note, the idea that humanitarian catastrophes must beavoided has been asserted as a reason for rethinking what actions international law permits in a number of situations.NATOs intervention in Kosovo in 1999 is a case to consider in this connection. In defending the legality ofNATOs actions, the United Kingdom and several other allies asserted a doctrine of humanitarian intervention,under which states have a right to use force if it is necessary to prevent genocide, a major loss of civilian life, or alarge scale forced movement of a population, which would destabilize other states and threaten international peaceand security. In this view, the humanitarian intervention doctrine is often presented as a necessary extension ofhumanitarian law as it has evolved since 1945. Significantly, the doctrine was invoked in the absence ofauthorization by the UN Security Council. The United States did not, however, adopt this theory as a basis for theNATO intervention in Kosovo, and instead pointed to a range of other factors to justify its participation in theKosovo campaign.).221 David Andrews, Legal Adviser, Department of State, Oral Proceedings, May 11, 1999, Legality of Use of Force(Yugoslavia v. United States) I.C.J. 10 (1.7) (As you have already heard, the actions of the Members of the NATOAlliance find their justification in a number of factors. These include: - The humanitarian catastrophe that hasengulfed the people of Kosovo as a brutal and unlawful campaign of ethnic cleansing has forced many hundreds ofthousands to flee their homes and has severely endangered their lives and well-being; - The acute threat of theactions of the Federal Republic of Yugoslavia to the security of neighbouring States, including threat posed byextremely heavy flows of refugees and armed incursions into their territories; - The serious violation of internationalhumanitarian law and human rights obligations by forces under the control of the Federal Republic of Yugoslavia,including widespread murder, disappearances, rape, theft and destruction of property; and, finally - The resolutionsof the Security Council, which have determined that the actions of the Federal Republic of Yugoslavia constitute athreat to peace and security in the region and, pursuant to Chapter VII of the Charter, demanded a halt to suchactions.).222 For example, U.N. SECURITY COUNCIL RESOLUTION 1973, U.N. Doc. S/RES/1973, 4 (Mar. 17, 2011) ([ThisResolution] [a]uthorizes Member States that have notified the Secretary-General, acting nationally or throughregional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessarymeasures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areasunder threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupationforce of any form on any part of Libyan territory .).223 U.N. CHARTER art. 51.

46 The Charter of the United Nations was not intended to supersede a States inherent rightof individual or collective self-defense in customary international law. 224

To constitute legitimate self-defense under customary international law, it is generally

understood that the defending States actions must be necessary. 225 For example, reasonablyavailable peaceful alternatives must be exhausted. 226 In addition, the measures taken in self-defense must be proportionate to the nature of the threat being addressed. 227

1.11.5.1 Responding to an Imminent Threat of an Attack. The text of Article 51

of the Charter of the United Nations refers to the right of self-defense if an armed attack occursagainst a Member of the United Nations. 228 Under customary international law, States had, andcontinue to have, the right to take measures in response to imminent attacks. 229

1.11.5.2 Use of Force Versus Armed Attack. The United States has long taken theposition that the inherent right of self-defense potentially applies against any illegal use offorce. 230 Others, however, would be inclined to draw more of a distinction between armedattacks and uses of force that do not give rise to the right to use force in self-defense. 231

224 Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 94 (1989)(The United States rejects the notion that the U.N. Charter supersedes customary international law on the right ofself-defense. Article 51 characterizes that right as inherent in order to prevent its limitation based on any provisionin the Charter. We have always construed the phrase armed attack in a reasonable manner, consistent with acustomary practice that enables any State effectively to protect itself and its citizens from every illegal use of forceaimed at the State.).225 William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALEJOURNAL OF INTERNATIONAL LAW 295, 304 (2004) (To constitute legitimate self-defense under customaryinternational law, it is generally understood that the defending States actions must be both necessary andproportional.).226 Refer to 1.11.1.3 (All Peaceful Alternatives Must Have Been Exhausted (Necessity Jus ad Bellum)).227 Refer to 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality Jus ad Bellum)).228 U.N. CHARTER art. 51.229 Lord Peter Henry Goldsmith, Attorney General, United Kingdom, Oral Answers to Questions, Apr. 21, 2004,HANSARD 660 HOUSE OF COMMONS DEBATES 370-71 (It is argued by some that the language of Article 51provides for a right of self-defence only in response to an actual armed attack. However, it has been the consistentposition of successive United Kingdom Governments over many years that the right of self-defence underinternational law includes the right to use force where an armed attack is imminent. It is clear that the language ofArticle 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under international law. It is not a new invention. The charter did not therefore affectthe scope of the right of self-defence existing at that time in customary international law, which included the right touse force in anticipation of an imminent armed attack.).230 See Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 92-93(1989) (The United States has long assumed that the inherent right of self defense potentially applies against anyillegal use of force, and that it extends to any group or State that can properly be regarded as responsible for suchactivities. These assumptions are supported in customary practice.). See also William H. Taft IV, Legal Adviser,Department of State, Self-Defense and the Oil Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295,300-01 (2004) (A requirement that an attack reach a certain level of gravity before triggering a right of self-defensewould make the use of force more rather than less likely, because it would encourage States to engage in a series ofsmall-scale military attacks, in the hope that they could do so without being subject to defensive responses.Moreover, if States were required to wait until attacks reached a high level of gravity before responding with force,

47 1.11.5.3 Use of Force to Protect Nationals Abroad. A States right to use force inself-defense may be understood to include the right to use force to protect its nationals abroad. 232The United States has taken action to protect U.S. nationals abroad when the government of theterritory in which they are located was unwilling or unable to protect them. 233 A State need notawait actual violence against its nationals before taking such action if an attack against them isimminent. 234

1.11.5.4 Right of Self-Defense Against Non-State Actors. The inherent right of

self-defense, recognized in Article 51 of the Charter of the United Nations, applies in response toany armed attack, not just attacks that originate with States. 235 As with any other exercise of

their eventual response would likely be much greater, making it more difficult to prevent disputes from escalatinginto full-scale military conflicts.).231 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits,Judgment, 1986 I.C.J. 14, 101 (191) (As regards certain particular aspects of the principle in question, it will benecessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other lessgrave forms.); id. at 126-27 (247) (So far as regards the allegations of supply of arms by Nicaragua to the armedopposition in El Salvador, the Court has indicated that while the concept of an armed attack includes the despatch byone State of armed bands into the territory of another State, the supply of arms and other support to such bandscannot be equated with armed attack. Nevertheless, such activities may well constitute a breach of the principle ofthe non-use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainlywrongful, but is of lesser gravity than an armed attack.).232 Ambassador William Scranton, U.S. Representative to the United Nations, Statement in the U.N. SecurityCouncil regarding Israeli action at Entebbe, Jul. 12, 1976, 1976 DIGEST OF UNITED STATES PRACTICE ININTERNATIONAL LAW 150 ([T]here is a well-established right to use limited force for the protection of ones ownnationals from an imminent threat of injury or death in a situation where the State in whose territory they are locatedeither is unwilling or unable to protect them. The right, flowing from the right of self defense, is limited to such useof force as is necessary and appropriate to protect threatened nationals from injury.).233 For example, Jimmy Carter, Letter to Thomas P. ONeal, Jr., Speaker of the House of Representatives, andWarren G. Magnuson, President pro tempore of the Senate regarding the rescue attempt for American hostages inIran, Apr. 26, 1980, 1980-I PUBLIC PAPERS OF THE PRESIDENTS 779 (In carrying out this operation [to rescue theAmerican hostages in the U.S. embassy in Tehran] the United States was acting wholly within its right, inaccordance with Article 51 of the United Nations Charter, to protect and rescue its citizens where the government ofthe territory in which they are located is unwilling or unable to protect them.).234 Kenneth W. Dam, Deputy Secretary of State, Statement before the House Committee on Foreign Affairs, Nov. 2,1983, reprinted in 78 AJIL 200, 203-04 (1984) (U.S. actions have been based on three legal grounds: Third,U.S. action to secure and evacuate endangered U.S. citizens on the island was undertaken in accordance with well-established principles of international law regarding the protection of ones nationals. That the circumstanceswarranted this action has been amply documented by the returning students themselves. There is absolutely norequirement of international law that compelled the United States to await further deterioration of the situation thatwould have jeopardized a successful operation. Nor was the United States required to await actual violence againstU.S. citizens before rescuing them from the anarchic and threatening conditions the students have described.).235 See, e.g., In re Guantanamo Bay Litigation, Respondents Memorandum Regarding the Governments DetentionAuthority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 4 (D.D.C., Mar. 13, 2009) (Underinternational law, nations lawfully can use military force in an armed conflict against irregular terrorist groups suchas al-Qaida. The United Nations Charter, for example, recognizes the inherent right of states to use force in selfdefense in response to any armed attack, not just attacks that originate with states. United Nations Charter, art.51.); U.S. Additional Response to the Request for Precautionary MeasuresDetention of Enemy Combatants atGuantanamo Bay, Cuba, Inter-American Commission on Human Rights, Jul. 15, 2002, 2002 DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 1008, 1011-12 (The terrorist attacks of September 11 were not ordinarycriminal acts. The international community has clearly recognized the right of the United States and allied forces

48the right of self-defense, actions taken in self-defense against non-State actors must comply withapplicable international law. 236

1.11.5.5 Right of Collective Self-Defense. Article 51 of the Charter of the United

Nations also recognizes a right of States to engage in collective self-defense with a State that canlegitimately invoke its own right of national self-defense. Collective self-defense of a State mustproceed with that States consent, although this consent need not necessarily be expressed in theform of an explicit request. 237

Some treaties include commitments by States to assist one another in collective self-defense. 238

1.11.5.6 Reporting to the U.N. Security Council. Measures taken in the exerciseof national self-defense shall be immediately reported to the U.N. Security Council. 239

to resort to armed force in self-defense in response to these attacks. For instance, the United Nations explicitlyrecognized the inherent right of individual and collective self-defence immediately following September 11. It isin this context that NATO and others recognized that the September 11 attacks constituted an armed attack, aconclusion inherent in the UN Security Councils recognition of the right of self-defense.).236 Refer to 17.18.2 (Duty of Belligerent States to Respect the Sovereignty of Other States).237 See also BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 675 (1994) (Art. 51 of theCharter allows not only individual, but also collective self-defence. The latter is not, as the wording might suggest,restricted to a common, co-ordinated exercise of the right to individual self-defence by a number of states. It isnot required for the exercise of the right of collective self-defence that the state invoking the right be under anobligation resulting from a treaty of assistance. Rather, it is sufficient, but also necessary, that the support be givenwith the consent of the attacked state. But this consent does not, as the ICJ states for the right of self-defence undercustomary law, need to be declared in the form of an explicit request.).238 For example, The North Atlantic Treaty, Washington, D.C., Apr. 4, 1949, art. 5 (The Parties agree that an armedattack against one or more of them in Europe or North America shall be considered an attack against them all andconsequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual orcollective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Partiesso attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary,including the use of armed force, to restore and maintain the security of the North Atlantic area.).239 U.N. CHARTER art. 51 (Measures taken by Members in the exercise of this right of self-defence shall beimmediately reported to the Security Council and shall not in any way affect the authority and responsibility of theSecurity Council under the present Charter to take at any time such action as it deems necessary in order to maintainor restore international peace and security.).

Three interdependent principles military necessity, humanity, and honor provide thefoundation for other law of war principles, such as proportionality and distinction, and most ofthe treaty and customary rules of the law of war.

This Chapter briefly addresses certain specific rules to illustrate these foundationalprinciples. For more information about a specific rule, practitioners should refer to the cross-referenced section that addresses that rule. 1

2.1.1 Legal Principles as Part of International Law. General principles of law common tothe major legal systems of the world are a recognized part of international law. 2 Law of warprinciples have been understood to be included in this category of international law. 3

1 Refer to 1.2.3 (Use of Cross-References in This Manual).2 See ICJ STATUTE art. 38(1)(c) (providing that the general principles of law recognized by civilized nations are asource of applicable law for the court); I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITEDSTATES 24 (102(1)(c)(4)) (1987) (including general principles common to the major legal systems of the world,among sources of international law); Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815) (Marshall, C.J.)(ascertaining international law includes resort to the great principles of reason and justice).3 See BOTHE, PARTSCH, & SOLF, NEW RULES 44 (AP I art. 1, 2.10) (Following the original clause in the preambleof the 1899 IV. Hague Convention on Land Warfare (para. 9) and para. 4 of the denunciation clause in theConventions (63/62/142/158) these principles are stated in the present text to be part of international law. They aregeneral principles of law in the sense of Art. 38 of the Statute of the ICJ.); Speech by Baron Descamps on theRules of Law to be applied, Annex No. 1 to 14th Meeting (Private), held at the Peace Palace, the Hague, on July2nd, 1920, PERMANENT COURT OF INTERNATIONAL JUSTICE, ADVISORY COMMITTEE OF JURISTS, PROCS-VERBAUXOF THE PROCEEDINGS OF THE COMMITTEE: JUNE 16TH JULY 24TH 1920 WITH ANNEXES 322, 323-24 (1920) (Theonly question is, -- how to make unerring rules for the judges guidance. I allow him to take into considerationthe legal conscience of civilised nations, which is illustrated so strikingly on certain occasions. [L]isten to thissolemn declaration of the Powers, placed at the beginning of the Convention dealing with laws and customs of waron land: Until a more complete code of the laws of war has been issued, the high contracting Parties deem itexpedient to declare that, in cases not included in the Regulations adopted by them, populations and belligerentsremain under the protection and the rule of the principles of the law of nations, as they result from the usagesestablished among civilised peoples, from the laws of humanity, and the dictates of the public conscience. I amconvinced that the assembly of all the States does not and cannot intend, in dealing with the state of peace, to abjureprinciples which are clearly intended to be applied in war.).

50 2.1.2 Uses of Law of War Principles. Law of war principles provide the foundation forthe specific law of war rules. Legal principles, however, are not as specific as rules, and thusinterpretations of how principles apply to a given situation may vary.

Law of war principles: (1) help practitioners interpret and apply specific treaty orcustomary rules; (2) provide a general guide for conduct during war when no specific ruleapplies; and (3) work as interdependent and reinforcing parts of a coherent system.

2.1.2.1 Law of War Principles as an Aid in Interpreting and Applying Law of WarRules. Understanding law of war principles helps practitioners interpret and apply specific lawof war rules. For example, the principle of military necessity has been incorporated into specificlaw of war rules. 4 Similarly, the principle of humanity can assist in the proper interpretation andapplication of law of war rules that are based on humanitarian considerations. 5

2.1.2.2 Law of War Principles as a General Guide. When no specific rule

applies, the principles of the law of war form the general guide for conduct during war.

States have reflected this idea in certain treaty provisions, including the MartensClause, which make clear that situations not covered by the treaty remain governed byprinciples of international law. 6

The considerable progress States have made in developing specific law of war rules,however, has lessened the need to rely solely on these principles to guide conduct during war. 7

2.1.2.3 Law of War Principles as a Coherent System. Law of war principles workas interdependent and reinforcing parts of a coherent system.

Military necessity justifies certain actions necessary to defeat the enemy as quickly andefficiently as possible. 8 Conversely, humanity forbids actions unnecessary to achieve thatobject. 9 Proportionality requires that even when actions may be justified by military necessity,such actions not be unreasonable or excessive. 10 Distinction underpins the parties responsibilityto comport their behavior with military necessity, humanity, and proportionality by requiringparties to a conflict to apply certain legal categories, principally the distinction between the

4 Refer to 2.2.2.2 (Incorporation of Military Necessity Into Law of War Rules).5 Refer to 2.3.2 (Humanity and Law of War Rules).6 Refer to 19.8.3 (Martens Clause).7 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 46-47 (Where the general principles of the law of war havereceivedthrough the agreement of statesdetailed application in the form of specific rules, the question of theproper interpretation of these general principles can only be answered by an examination of the former. Hence, tothe extent that the conduct of war is increasingly subjected to such regulation resort to the general principles of thelaw of war must become, in turn, correspondingly less frequent. The reason for this is simply that the essentialfunction of these general principles is to provide a guide for determining the legal status of weapons and methods ofwarfare where no more specific rule is applicable.).8 Refer to 2.2 (Military Necessity).9 Refer to 2.3 (Humanity).10 Refer to 2.4 (Proportionality).

51armed forces and the civilian population. 11 Lastly, honor supports the entire system and givesparties confidence in it. 12

2.2 MILITARY NECESSITY

Military necessity may be defined as the principle that justifies the use of all measuresneeded to defeat the enemy as quickly and efficiently as possible that are not prohibited by thelaw of war. Military necessity has been defined in military publications, 13 judicial decisions, 14and scholarly works. 15

2.2.1 Military Necessity as a Justification. Military necessity justifies actions, such as

destroying and seizing persons and property. 16 Thus, military necessity underlies law of war

11 Refer to 2.5 (Distinction).12 Refer to 2.6 (Honor).13 See LIEBER CODE art. 14 (Military necessity, as understood by modern civilized nations, consists in the necessityof those measures which are indispensable for securing the ends of the war, and which are lawful according to themodern law and usages of war.); 1914 RULES OF LAND WARFARE 9-11 (a belligerent is justified in applying anyamount and any kind of force which is necessary for the purpose of the war; that is, the complete submission of theenemy at the earliest possible moment with the least expenditure of men and money. Military necessity justifies aresort to all measures which are indispensable for securing this object and which are not forbidden by the modernlaws and customs of war.); 1940 RULES OF LAND WARFARE 4a (a belligerent is justified in applying any amountand any kind of force to compel the complete submission of the enemy with the least possible expenditure of time,life, and money.); 1956 FM 27-10 (Change No. 1 1976) 3 (that principle which justifies those measures notforbidden by international law which are indispensable for securing the complete submission of the enemy as soonas possible.); 1958 UK MANUAL 3 ( a belligerent is justified in applying compulsion and force of any kind, to theextent necessary for the realization of the purpose of war, that is, the complete submission of the enemy at theearliest possible moment with the least possible expenditure of men, resources, and money.); 2004 UK MANUAL2.2 (Military necessity is now defined as the principle whereby a belligerent has the right to apply any measureswhich are required to bring about the successful conclusion of a military operation and which are not forbidden bythe laws of war. Put another way, a state engaged in an armed conflict may use that degree and kind of force, nototherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of theconflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimumexpenditure of life and resources.); NATO, Glossary of Terms and Definitions, AAP-6 at 2-M-6 (2009) (definingmilitary necessity as the principle whereby a belligerent has the right to apply any measures which are required tobring about the successful conclusion of a military operation and which are not forbidden by the laws of war.).14 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253(Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force tocompel the complete submission of the enemy with the least possible expenditure of time, life, and money.).15 See GREENSPAN, MODERN LAW OF LAND WARFARE 313-14 (military necessity is the right to apply that amountand kind of force which is necessary to compel the submission of the enemy with the least possible expenditure oftime, life, and money); CHARLES HENRY HYDE, II INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIEDBY THE UNITED STATES 299-300 (1922) (Military necessity, as understood by the United States, justifies a resort toall measures which are indispensable to bring about the complete submission of the enemy by means of regulatedviolence and which are not forbidden by the modern laws and customs of war.); WILLIAM EDWARD HALL, ATREATISE ON INTERNATIONAL LAW 63 (17) (A. Pearce Higgins, ed., 7th ed., 1917) (When violence is permitted atall, the amount which is permissible is that which is necessary to attain the object proposed. The measure of theviolence which is permitted in war is therefore that which is required to reduce the enemy to terms.).16 See LIEBER CODE art. 15 (Military necessity admits of all destruction of life or limb of armed enemies, itallows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or ofpeculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of

52concepts that explain when persons and property may be the object of attack, e.g., the conceptsof taking a direct part in hostilities 17 and military objective. 18

Military necessity may justify not only violence and destruction, but also alternativemeans of subduing the enemy. 19 For example, military necessity may justify the capture ofenemy persons, 20 or non-forcible measures, such as propaganda and intelligence-gathering. 21

Military necessity also justifies certain incidental harms that inevitably result from theactions it justifies. 22 The extent to which military necessity justifies such harms is addressed bythe principle of proportionality. 23

2.2.2 Military Necessity and Law of War Rules.

2.2.2.1 Military Necessity Does Not Justify Actions Prohibited by the Law of War.Military necessity does not justify actions that are prohibited by the law of war.

From the late 19th Century through World War II, Germany asserted that militarynecessity could override specific law of war rules (Kriegsraeson geht vor Kriegsmanier necessity in war overrules the manner of warfare). 24 This view was strongly criticized. 25 Post-World War II war crimes tribunals rejected it as well. 26

traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of theappropriation of whatever an enemys country affords necessary for the subsistence and safety of the army, and ofsuch deception as does not involve the breaking of good faith either positively pledged, regarding agreementsentered into during the war, or supposed by the modern law of war to exist.); United States v. List, et al. (TheHostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54 (In general, [military necessity]sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of hisoperations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentallyunavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiardanger . It is lawful to destroy railways, lines of communication, or any other property that might be utilized bythe enemy. Private homes and churches even may be destroyed if necessary for military operations.).17 Refer to 5.9 (Civilians Taking a Direct Part in Hostilities).18 Refer to 5.7 (Military Objective).19 For example, Abraham Lincoln, The Emancipation Proclamation, Jan. 1, 1863, reprinted in 12 STAT. 1268(justifying emancipation of slaves held in rebellious states as warranted by the Constitution, upon militarynecessity).20 Refer to 8.1.3.1 (Detention Authority).21 Refer to 5.26 (Non-Forcible Means and Methods of Warfare).22 See LIEBER CODE art. 15 (Military necessity admits of all destruction of life or limb of persons whosedestruction is incidentally unavoidable in the armed contests of the war;); United States v. List, et al. (The HostageCase), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54 (military necessity permits the destruction of lifeof persons whose destruction is incidentally unavoidable by the armed conflicts of the war;).23 Refer to 2.4 (Proportionality).24 See LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 231-32 (69) (In accordance with the Germanproverb, Kriegsraeson geht vor Kriegsmanier (necessity in war overrules the manner of warfare), many Germanauthors before the First World War were maintaining that the laws of war lose their binding force in case of extremenecessity.); United States, et al. v. Gring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE

53 Military necessity cannot justify departures from the law of war because States havecrafted the law of war specifically with wars exigencies in mind. 27 In devising law of war rules,States considered military requirements. 28 Thus, prohibitions on conduct in the law of war maybe understood to reflect States determinations that such conduct is militarily unnecessary per se.

IMT 227 (The truth remains that War Crimes were committed on a vast scale, never before seen in the history ofwar. There can be no doubt that the majority of them arose from the Nazi conception of total war, with whichthe aggressive wars were waged. For in this conception of total war, the moral ideas underlying the conventionswhich seek to make war more humane are no longer regarded as having force or validity. Everything is madesubordinate to the overmastering dictates of war. Rules, regulations, assurances, and treaties all alike are of nomoment; and so, freed from the restraining influence of international law, the aggressive war is conducted by theNazi leaders in the most barbaric way. Accordingly, War Crimes were committed when and wherever the Fhrerand his close associates thought them to be advantageous.).25 See, e.g., Elihu Root, Opening Address, 15 PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW 1,2 (1921) (More important still is a fact which threatens the foundation of all international law. The doctrine ofkriegsraison has not been destroyed. It was asserted by Bethman Hollweg at the beginning of the war when hesought to justify the plain and acknowledged violation of international law in the invasion of Belgium upon theground of military necessity. The doctrine practically is that if a belligerent deems it necessary for the success of itsmilitary operations to violate a rule of international law, the violation is permissible. As the belligerent is to be thesole judge of the necessity, the doctrine really is that a belligerent may violate the law or repudiate it or ignore itwhenever that is deemed to be for its military advantage. The alleged necessity in the case of the German invasionof Belgium was simply that Belgium was deemed to be the most advantageous avenue through which to attackFrance. Of course, if that doctrine is to be maintained, there is no more international law, for the doctrine cannot beconfined to the laws specifically relating to war on land and sea. With a nation at liberty to declare war, there arefew rules of peaceful intercourse, the violation of which may not be alleged to have some possible bearing upon amilitary advantage, and a law which may rightfully be set aside by those whom it is intended to restrain is no law atall.).26 See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1255-56 (It is apparent from the evidence of these defendants that they considered military necessity, a matter to bedetermined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare areanything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules.);United States v. Krupp, et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340 (rejecting defense counselargument that Hague IV and Hague IV Reg. rules did not apply in cases of total war). See also Trial of GuntherThiele and Georg Steinert, III U.N. LAW REPORTS 58-59 (U.S. Military Commission, Augsberg, Germany, Jun. 13,1945) (rejecting military necessity as a defense to the murder of a prisoner of war); United States v. Milch, II TRIALSOF WAR CRIMINALS BEFORE THE NMT 849-50 (Musmanno, J., concurring) (rejecting defense counsel argument thattotal warfare allowed suspension or abrogation of law of war rules).27 1956 FM 27-10 (Change No. 1 1976) 3a (Military necessity has been generally rejected as a defense for actsforbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framedwith consideration for the concept of military necessity.); United States v. Krupp, et al., IX TRIALS OF WARCRIMINALS BEFORE THE NMT 1347 (In short these rules and customs of warfare are designed specifically for allphases of war. They comprise the law for such emergency.); Treaty of Amity and Commerce between His Majestythe King of Prussia and the United States of America, art. 24, Sept. 10, 1785, 18 STAT. 641, 647 (declaring thatneither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling orsuspending this and next preceding article; but on the contrary, that the state of war is precisely that for which theyare provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law ofnature or nations.).28 See, e.g., HAGUE IV preamble 5 (these provisions, the wording of which has been inspired by the desire todiminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conductfor the belligerents in their mutual relations and in their relations with the inhabitants.) (emphasis added).

54 The fact that law of war rules are formulated specifically with military requirements inmind has played an important part in the doctrine that the law of war is the lex specialisgoverning armed conflict. 29

2.2.2.2 Incorporation of Military Necessity Into Law of War Rules. Although

military necessity cannot justify actions that have been prohibited by the law of war, some law ofwar rules expressly incorporate military necessity.

For example, certain law of war rules specify that departures from what would otherwisebe the rule are permissible when absolutely or imperatively necessary. In these cases, militarynecessity must not be conflated with mere convenience. 30 Examples of rules incorporating theconcept of absolute or imperative necessity include the following:

The activities of the representatives or delegates of the Protecting Powers shall only be restricted as an exceptional and temporary measure when this is rendered necessary by imperative military necessities. 31

The internment or placing in assigned residence of protected persons may be ordered

only if the security of the Detaining Power makes it absolutely necessary. 32

If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. 33

The seizure or destruction of enemy property must be imperatively demanded by the

necessities of war. 34

Certain law of war rules may direct that persons comply with an obligation, but only tothe extent feasible or consistent with military necessity. Examples of rules incorporating theconcept of feasibility or necessity include the following:

29 Refer to 1.3.2.1 (The Law of War as the Lex Specialis Governing Armed Conflict).30 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1252(rejecting defendants plea of military necessity, a term which they confuse with convenience and strategicalinterests.); General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding theProtection of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMANS DIGEST 438 (13) (explaining thatalthough the phrase military necessity is sometimes used where it would be more truthful to speak of militaryconvenience or even personal convenience, military necessity should not cloak slackness or indifference todiscerning whether law of war obligations, such as the protection of cultural property, may be fulfilled without anydetriment to operational needs).31 Refer to 4.25.3 (Restrictions on Representatives of the Protecting Powers).32 Refer to 10.9.2.1 (Internment or Assigned Residence Only if Absolutely Necessary).33 Refer to 10.9.3.1 (Internment or Assigned Residence for Imperative Reasons of Security).34 Refer to 5.17.2 (Enemy Property Military Necessity Standard); 11.18.2 (Seizure or Destruction of PropertyDuring Occupation Application of the Military Necessity Standard).

55 Certain affirmative duties to take feasible precautions to reduce the risk of harm to the civilian population and other protected persons and objects. 35

Military medical and religious personnel, if their retention is not indispensable, are to be returned to the party to the conflict to which they belong as soon as a road is open for their return and military requirements permit. 36

Whenever military considerations permit, POW camps shall be indicated in the day time by the letters PW or PG, placed so as to be clearly visible from the air. 37

Should military necessity require the quantity of relief shipments to civilian internees to be limited, due notice thereof shall be given to the Protecting Power and to the International Committee of the Red Cross, or to any other organization giving assistance to the internees and responsible for the forwarding of such shipments. 38

2.2.3 Applying Military Necessity. Military necessity is a difficult concept to define andapply. 39 What is necessary in war may depend closely on the specific facts and circumstances ofa given situation, and different people often assess military necessity differently. The limited andunreliable nature of information available during war compounds this difficulty in evaluatingwhat is necessary. 40 This difficulty runs throughout the law of war, since military necessity isitself important and is an element of many other principles and rules.

The law of war seeks to ameliorate these difficulties in applying military necessity by:(1) permitting consideration of the broader imperatives of winning the war as quickly andefficiently as possible; (2) recognizing that certain types of actions are, as a general matter,inherently militarily necessary; and (3) recognizing that persons must assess the militarynecessity of an action in good faith based on the information available to them at the relevanttime and that they cannot be judged based on information that subsequently comes to light.

2.2.3.1 Consideration of the Broader Imperatives of Winning the War. In

evaluating military necessity, one may consider the broader imperatives of winning the war asquickly and efficiently as possible and is not restricted to considering only the demands of thespecific situation.

This is the case because military necessity justifies those measures necessary to achievethe object of war, and the object of war is not simply to prevail, but to prevail as quickly and

35 Refer to 5.3.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and OtherProtected Persons and Objects).36 Refer to 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable).37 Refer to 9.11.4.3 (Marking of POW Camps).38 Refer to 10.23.3 (Receipt of Individual and Collective Relief Shipments for Internees).39 See SPAIGHT, WAR RIGHTS ON LAND 113 (There is no conception in International Law more elusive, protean,wholly unsatisfactory, than that of war necessity.).40 Refer to 1.4.2.2 (Nature of War Limited and Unreliable Information Fog of War).

56efficiently as possible. 41 Thus, military necessity may consider the broader imperatives ofwinning the war and not only the demands of the immediate situation. For example, in assessingthe military advantage of attacking an object, one may consider the entire war strategy ratherthan only the potential tactical gains from attacking that object. 42 An interpretation of militarynecessity that only permitted consideration of the immediate situation could prolong the fightingand increase the overall suffering caused by the war. 43

Some commentators have argued that military necessity should be interpreted so as to

permit only what is actually necessary in the prevailing circumstances, such as by requiringcommanders, if possible, to seek to capture or wound enemy combatants rather than to makethem the object of attack. 44 This interpretation, however, does not reflect customaryinternational law or treaty law applicable to DoD personnel. 45 For example, the law of war doesnot require that enemy combatants be warned before being made the object of attack, nor doesthe law of war require that enemy combatants be given an opportunity to surrender before being

41 Refer to 1.4.1 (Object of War).42 Refer to 5.7.7.3 (Definite Military Advantage); 5.12.5 (Concrete and Direct Military Advantage Expected toBe Gained).43 See, e.g., Department of Defense, National Military Strategy of the United States, 10 (Jan. 1992) (Once adecision for military action has been made, half-measures and confused objectives extract a severe price in the formof a protracted conflict which can cause needless waste of human lives and material resources, a divided nation athome, and defeat. Therefore, one of the essential elements of our national military strategy is the ability to rapidlyassemble the forces needed to win -- the concept of applying decisive force to overwhelm our adversaries andthereby terminate conflicts swiftly with a minimum loss of life.); LIEBER CODE art. 29 (The more vigorously warsare pursued, the better it is for humanity. Sharp wars are brief.); Count von Moltke, letter to Professor Bluntschli,Dec. 11, 1880, reprinted in G. SHERSTON BAKER, II HALLECKS INTERNATIONAL LAW 19 footnote 1 (1908) (Thegreatest kindness in war is to bring it to a speedy conclusion.).44 See, e.g., Nils Melzer, Legal Adviser, International Committee of the Red Cross, Interpretive Guidance on theNotion of Direct Participation in Hostilities Under International Humanitarian Law, 79 (May 2009) (Inconjunction, the principles of military necessity and of humanity reduce the sum total of permissible military actionfrom that which IHL does not expressly prohibit to that which is actually necessary for the accomplishment of alegitimate military purpose in the prevailing circumstances.) (emphasis added); JEAN PICTET, DEVELOPMENT ANDPRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW 75-76 (1985) (If we can put a soldier out of action bycapturing him, we should not wound him; if we can obtain the same result by wounding him, we must not killhim.).45 See, e.g., W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department ofthe Army, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3419 (In the employment of military forces, the phrasecapture or kill carries the same meaning or connotation in peacetime as it does in wartime. There is no obligationto attempt capture rather than attack of an enemy. In some cases, it may be preferable to utilize ground forces inorder to capture, e.g., a known terrorist. However, where the risk to U.S. forces is deemed too great, if the Presidenthas determined that the individual[s] in question pose such a threat to U.S. citizens or the national security interestsof the United States as to require the use of military force, it would be legally permissible to employ, e.g., anairstrike against that individual or group rather than attempt his, her, or their capture, and would not violate theprohibition on assassination.).

57made the object of attack. 46 Moreover, the law of war may justify the use of overwhelming forceagainst enemy military objectives. 47

Necessary. The law of war recognizes that certain types of actions are, as a general matter,inherently militarily necessary. 48 For example, attacking enemy combatants is generallylawful. 49 Similarly, the internment of enemy POWs is generally lawful. 50 Such rules may beviewed as an example of how, when specific rules are applicable, there is less need to resort tofundamental law of war principles as a general guide for conduct during war. 51

2.2.3.3 Good Faith Evaluation of Military Necessity Based on the Available

Information. In what is sometimes called the Rendulic Rule, the law of war recognizes thatpersons must assess the military necessity of an action based on the information available tothem at that time; they cannot be judged based on information that subsequently comes to light. 52

2.3 HUMANITY

Humanity may be defined as the principle that forbids the infliction of suffering, injury,or destruction unnecessary to accomplish a legitimate military purpose. 53

2.3.1 Humanity as a Prohibition. Although military necessity justifies certain actions

necessary to defeat the enemy as quickly and efficiently as possible, military necessity cannot

46 Refer to 5.5.6.1 (Surprise Attacks); 5.5.6.2 (Attacks on Retreating Forces).47 Refer to 5.5.6 (Force That May Be Applied Against Military Objectives).48 See VATTEL, THE LAW OF NATIONS 295 (3.9.173) (explaining that the law of war seeks to avoid contentiousdisputes between belligerents about whether actions are militarily necessary by establishing general rulesindependent of circumstances and of certain and easy application and thus permits or tolerates every act which inits essential nature is adapted to attaining the end of war; and it does not stop to consider whether the act wasunnecessary, useless, or superfluous in a given case unless there is the clearest evidence that an exception should bemade in that instance).49 Refer to 5.6.1 (Persons, Objects, and Locations That Are Not Protected From Being Made the Object of Attack).50 Refer to 9.11.1 (Internment in POW Camps).51 Refer to 2.1.2.2 (Law of War Principles as a General Guide).52 Refer to 5.4 (Assessing Information Under the Law of War).53 See, e.g., 2001 CANADIAN MANUAL 202(6) (humanity forbids the infliction of suffering, injury or destructionnot actually necessary for the accomplishment of legitimate military purposes.); 2004 UK MANUAL 2.4(Humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishmentof legitimate military purposes.); GREENSPAN, MODERN LAW OF LAND WARFARE 315 (humanity forbids theemployment of all such kinds and degrees of violence as are not necessary for the purpose of the war); 1958 UKMANUAL 3 (humanity is the principle according to which kinds and degrees of violence which are not necessaryfor the purpose of war are not permitted to a belligerent;); LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW227 (67) (Humanity postulates that all such kinds and degrees of violence as are not necessary for theoverpowering of the opponent should not be permitted to a belligerent.); 1940 RULES OF LAND WARFARE 4b(defining the principle of humanity as prohibiting employment of any such kind or degree of violence as is notactually necessary for the purpose of the war); 1914 RULES OF LAND WARFARE 9 (The principle of humanitysays that all such kinds and degrees of violence as are not necessary for the purpose of war are not permitted to abelligerent.).

58justify actions not necessary to achieve this purpose, such as cruelty or wanton violence. 54Moreover, once a military purpose has been achieved, inflicting more suffering is unnecessaryand should be avoided. For example, if an enemy combatant has been placed hors de combat(e.g., incapacitated by being severely wounded or captured), no military purpose is served bycontinuing to attack him or her. 55 Thus, the principle of humanity forbids making enemycombatants who have been placed hors de combat the object of attack. 56 Similarly, the principleof humanity has been viewed as the source of the civilian populations immunity from beingmade the object of attack because their inoffensive and harmless character means that there is nomilitary purpose served by attacking them. 57

2.3.1.1 Relationship Between the Principles of Humanity and Military Necessity

. Humanity is related to military necessity, and these principles logically complement

one another.

Humanity may be viewed as the logical inverse of the principle of military necessity. Ifcertain necessary actions are justified, then certain unnecessary actions are prohibited. Theprinciple of humanity is an example of how the concept of necessity can function as a limitationas well as a justification.58

Because humanity forbids those actions that are unnecessary, the principle of humanity isnot in tension with military effectiveness, but instead reinforces military effectiveness.59

2.3.2 Humanity and Law of War Rules. Humanity animates certain law of war rules,including:

fundamental safeguards for persons who fall into the hands of the enemy; 60

54 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54([Military necessity] does not permit the killing of innocent inhabitants for purposes of revenge or the satisfactionof a lust to kill. It does not admit the wanton devastation of a district or the willful infliction of suffering upon itsinhabitants for the sake of suffering alone.); LIEBER CODE art. 16 (Military necessity does not admit to cruelty --that is, the infliction of suffering for the sake of suffering or for revenge, .).55 See 2004 UK MANUAL 2.4.1 (The principle of humanity is based on the notion that once a military purpose hasbeen achieved, the further infliction of suffering is unnecessary. Thus, if an enemy combatant has been put out ofaction by being wounded or captured, there is no military purpose to be achieved by continuing to attack him. Forthe same reason, the principle of humanity confirms the basic immunity of civilian populations and civilian objectsfrom attack because civilians and civilian objects make no contribution to military action.).56 Refer to 5.10 (Persons Placed Hors de Combat).57 Refer to 4.2.1 (Development of the Distinction Between the Armed Forces and the Civilian Population).58 Cf. Ex parte Milligan, 71 U.S. 2, 127 (1866) (If, in foreign invasion or civil war, the courts are actually closed,and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations,where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, topreserve the safety of the army and society, and as no power is left but the military, it is allowed to govern bymartial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, ifthis government is continued after the courts are reinstated, it is a gross usurpation of power.) (emphasis added).59 Refer to 18.2.1 (Reinforcing Military Effectiveness).

59 protections for the civilian population and civilian objects; 61

protections for military medical personnel, units, and transports; 62

prohibitions on weapons that are calculated to cause superfluous injury; 63 and

prohibitions on weapons that are inherently indiscriminate. 64

The principle of humanity may help interpret or apply these and other law of war rules.For example, the requirement that POWs be interned only in premises located on land has beenunderstood not to prohibit POW detention aboard ships pending the establishment of suitablefacilities on land, if detention aboard ships provides the most appropriate living conditions forPOWs. 65 Similarly, the U.S. reservation to CCW Protocol III on Incendiary Weapons makesclear that U.S. forces may use incendiary weapons against military objectives located inconcentrations of civilians where it is judged that such use would cause fewer casualties and/orless collateral damage than alternative weapons. 66

2.4 PROPORTIONALITY

Proportionality may be defined as the principle that even where one is justified in acting,one must not act in way that is unreasonable or excessive. 67

Proportionality has also been viewed as a legal restatement of the military concept ofeconomy of force. 68

60 Refer to 8.2 (Humane Treatment of Detainees); 9.5 (Humane Treatment and Basic Protections for POWs); 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).61 Refer to 5.3 (Overview of Rules for the Protection of Civilians).62 Refer to 7.8 (Respect and Protection of Categories of Medical and Religious Personnel); 7.10 (MilitaryMedical Units and Facilities); 7.11 (Ground Transport); 7.12 (Hospital Ships, Sick-Bays in Warships, andCoastal Rescue Craft); 7.14 (Military Medical Aircraft).63 Refer to 6.6 (Weapons Calculated to Cause Superfluous Injury).64 Refer to 6.7 (Inherently Indiscriminate Weapons).65 Refer to 9.11.3.1 (Location on Land).66 Refer to 6.14.3.2 (U.S. Reservation to CCW Protocol III on Incendiary Weapons).67 See Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER, THE DIPLOMATIC ANDOFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 110 (1848) (explaining that even actions takenin self-defense should not be unreasonable or excessive since such actions justified by the necessity of self-defense, must be limited by that necessity and kept clearly within it). See also GROTIUS, LAW OF WAR & PEACE601 (3.1.4.2) (we must also beware of what happens, and what we foresee may happen, beyond our purpose, unlessthe good which our action has in view is much greater than the evil which is feared, or, greater than the fear of theevil.); VATTEL, THE LAW OF NATIONS 279 (3.8.137) (explaining that a Sovereign has the right to make war uponhis fellow-men as a matter of necessity, and as a remedy, but the Sovereign should not push the remedy beyond itsjust limits, and should be careful not to make it more severe or more disastrous to mankind than the care of hisown safety and the defense of his rights require.).

60 2.4.1 Proportionality as a Limit on the Exercise of a Right.

2.4.1.1 Justification in Acting. Proportionality addresses cases in which one is

justified in acting. In jus in bello, the justification at issue generally is military necessity. So, forexample, an attack on enemy soldiers that incidentally damages civilian property would triggerproportionality considerations. On the other hand, where there is no justification for acting, suchas unlawful attacks directed against the civilian population, proportionality concerns would notbe reached.

justification for acting against the expected harms to determine whether the latter aredisproportionate in comparison to the former. In war, incidental damage to the civilianpopulation and civilian objects is unfortunate and tragic, but inevitable. 69 Thus, applying theproportionality rule in conducting attacks does not require that no incidental damage result fromattacks. Rather, this rule obliges persons to refrain from attacking where the expected harmincidental to such attacks would be excessive in relation to the military advantage anticipated tobe gained. 70

Under the law of war, judgments of proportionality often involve difficult and subjectivecomparisons. 71 Recognizing these difficulties, States have declined to use the termproportionality in law of war treaties because it could incorrectly imply an equilibriumbetween considerations or suggest that a precise comparison between them is possible. 72

2.4.2 Proportionality and the Law of War. The principle of proportionality is reflected inmany areas in the law of war.

Proportionality most often refers to the jus in bello standard applicable to personsconducting attacks. 73 Proportionality considerations, however, may also be understood to applyto the party subject to attack, which must take feasible precautions to reduce the risk of

68 General George S. Brown, Chairman of the Joint Chiefs of Staff, Address: Duke University School of Law, Oct.10, 1974, reprinted in ADDRESSES AND STATEMENTS BY GENERAL GEORGE S. BROWN, USAF, CHAIRMAN, JOINTCHIEF OF STAFF 1974-1978 (1978) (We recognize that wanton destruction and unnecessary suffering are bothviolations of these military developed legal principles and counterproductive to the political military goals of theNation. The law of proportionality is simply a legal restatement of the time honored military concept of economyof force.).69 Refer to 1.4.2 (Nature of War).70 Refer to 5.12 (Proportionality in Conducting Attacks).71 Refer to 5.12.4 (Excessive). Compare 2.2.3 (Applying Military Necessity).72 See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 309-10 (AP I art. 51, 2.6.2) (describing how some governmentdelegations in the 1974-1977 Diplomatic Conference opposed incorporation of the term proportionality oracknowledgement of a law of war rule of proportionality in AP I and AP II).73 Refer to 5.12 (Proportionality in Conducting Attacks).

61incidental harm. 74 Proportionality also plays a role in assessing whether weapons are prohibitedbecause they are calculated to cause unnecessary suffering. 75

In jus ad bellum, proportionality requires that the States means in resorting to force beproportionate to its just cause in using force, such as the threat that the State seeks to address. 76Proportionality is also a requirement for reprisals, which must respond in a proportionate mannerto the preceding illegal act by the party against which they are taken. 77

2.5 DISTINCTION

Distinction, sometimes called discrimination, obliges parties to a conflict to distinguish

principally between the armed forces and the civilian population, and between unprotected andprotected objects. 78

Distinction may be understood as encompassing two sets of reinforcing duties. Parties to

a conflict must apply a framework of legal classes for persons and objects by: (1) discriminatingin conducting attacks against the enemy; and (2) distinguishing a partys own persons andobjects.

2.5.1 Distinction as a Framework of Legal Classes. Distinction requires parties to a

conflict to apply a framework of legal classes for persons and objects, each class characterizedby different rights, duties, and liabilities.

Principally, distinction seeks to separate the armed forces and the civilian population. 79There are, however, certain special cases, such as military medical and religious personnel, whomay be treated like a combatant for one purpose (e.g., detention) but like a civilian for another

74 Refer to 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the PartySubject to Attack).75 Refer to 6.6.3.3 (Clearly Disproportionate).76 Refer to 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality Jus ad Bellum)).77 Refer to 18.18.2.4 (Proportionality in Reprisal).78 See, e.g., J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in67 AJIL 122 (1973) (A summary of the laws of armed conflict, in the broadest terms, reveals certain generalprinciples including the following: (c). That a distinction must be made at all times between persons taking partin the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible.These general principles were recognized in a resolution unanimously adopted by the United Nations GeneralAssembly in its Resolution dated 13 January 1969 (Resolution 2444 (XXIII)). We regard them as declaratory ofexisting customary international law.); Ex parte Quirin, 317 U.S. 1, 30 (1942) (By universal agreement andpractice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerentnations,); 2004 UK MANUAL 2.5 (Since military operations are to be conducted only against the enemys armedforces and military objectives, there must be a clear distinction between the armed forces and civilians, or betweencombatants and non-combatants, and between objects that might legitimately be attacked and those that areprotected from attack.). Consider AP I art. 48 (In order to ensure respect for and protection of the civilianpopulation and civilian objects, the Parties to the conflict shall at all times distinguish between the civilianpopulation and combatants and between civilian objects and military objectives and accordingly shall direct theiroperations only against military objectives.).79 Refer to 4.2 (The Armed Forces and the Civilian Population).

62purpose (e.g., not being made the object of attack). 80 However, for any particular legal purpose,a person may not claim the distinct rights afforded to both combatants and civilians at the sametime. 81

2.5.2 Discriminating in Conducting Attacks Against the Enemy. Distinction requires

parties to a conflict to discriminate in conducting attacks against the enemy. 82 On the one hand,consistent with military necessity, parties may make enemy combatants and other militaryobjectives the object of attack. 83 On the other hand, consistent with humanity, parties may notmake the civilian population and other protected persons and objects the object of attack. 84Moreover, persons using force must discriminate between legitimate and illegitimate objects ofattack in good faith based on the information available to them at the time. 85

2.5.3 Distinguishing a Partys Own Persons and Objects. Distinction enjoins the partycontrolling the population 86 to use its best efforts to distinguish or separate its military forces andwar-making activities from members of the civilian population to the maximum extent feasibleso that civilian casualties and damage to civilian objects incidental to attacks on militaryobjectives will be minimized as much as possible. 87

Parties to a conflict must: (1) take certain measures to help ensure that military forcesand civilians can be visually distinguished from one another; (2) physically separate, as feasible,their military objectives from the civilian population and other protected persons and objects;and (3) refrain from the misuse of protected persons and objects to shield military objectives.

2.5.3.1 Measures to Help Ensure That Military Forces and Civilians Are VisuallyDistinguishable From One Another. Parties to a conflict must take certain measures, in offenseor defense, to help ensure that military forces and civilians can be visually distinguished fromone another.

80 Refer to 4.2.3 (Mixed Cases).81 Refer to 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at theSame Time).82 Refer to 5.6 (Discrimination in Conducting Attacks).83 Refer to 5.6.1 (Persons, Objects, and Locations That Are Not Protected From Being Made the Object of Attack).84 Refer to 5.6.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack).85 Refer to 5.4 (Assessing Information Under the Law of War).86 Refer to 5.3.1 (Responsibility of the Party Controlling Civilian Persons and Objects).87 See J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67AJIL 122 (1973) (A summary of the laws of armed conflict, in the broadest terms, reveals certain general principlesincluding the following: (c). That a distinction must be made at all times between persons taking part in thehostilities and members of the civilian population to the effect that the civilians be spared as much as possible. The principle in (c) addresses primarily the Party exercising control over members of the civilian population. Thisprinciple recognizes the interdependence of the civilian community with the overall war effort of a modern society.But its application enjoins the party controlling the population to use its best efforts to distinguish or separate itsmilitary forces and war making activities from members of the civilian population to the maximum extent feasibleso that civilian casualties and damage to civilian objects incidental to attacks on military objectives, will beminimized as much as possible.).

63 First, parties to a conflict must not disguise their armed forces as civilians or as otherprotected categories of persons in order to kill or wound opposing forces. 88 Second, other rulesobligate parties to mark protected persons and objects to help ensure they receive the protectionsof that status. 89 Third, certain rules encourage parties to a conflict to identify certain persons andobjects as unprotected. For example, during international armed conflict, members of organizedresistance movements must, inter alia, wear fixed distinctive signs visible at a distance and carryarms openly to distinguish themselves from the civilian population in order for members of theirgroup to receive POW status. 90

2.5.3.2 Feasible Measures to Separate Physically a Partys Own Military

Objectives From the Civilian Population and Other Protected Persons and Objects. Distinctionalso creates obligations for parties to a conflict to take feasible measures to separate physicallytheir own military objectives from the civilian population and other protected persons andobjects. 91

For example, it may be appropriate to evacuate civilians from danger areas. 92 Similarly,if feasible, military commanders should avoid placing military objectives in densely populatedareas. 93 In addition, it may be appropriate to establish zones where civilians and other protectedpersons may seek refuge. 94

2.5.3.3 Refrain From the Misuse of Protected Persons and Objects to ShieldMilitary Objectives. Parties to a conflict must refrain from the misuse of civilians and otherprotected persons and objects to shield their own military objectives. 95 For example, it isprohibited to take hostages or otherwise to endanger deliberately protected persons or objects forthe purpose of deterring enemy military operations.

Misusing protected persons and objects to shield military objectives also offends honorbecause it constitutes a breach of trust with the enemy and thus undermines respect for the law ofwar. 96

2.5.4 Misconceptions About Distinction. Distinction seeks to ensure that protected andunprotected categories are distinct from one another, not distinct in the abstract. For example,using camouflage is consistent with distinction because foliage is not a protected category and

88 Refer to 5.22 (Treachery or Perfidy Used to Kill or Wound).89 Refer to 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).90 Refer to 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance); 4.6.5 (Carrying Arms Openly).91 Refer to 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the PartySubject to Attack).92 Refer to 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).93 Refer to 5.14.1 (Refraining From Placing Military Objectives in Densely Populated Areas).94 Refer to 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).95 Refer to 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede MilitaryOperations).96 Refer to 2.6.2 (Certain Amount of Fairness in Offense and Defense).

64because civilians generally do not wear camouflage. 97 Similarly, U.S. forces have worn non-standard uniforms to blend with local forces while remaining distinct from the civilianpopulation. 98

Distinction addresses the different rights, duties, and liabilities of the categories; it doesnot require that a particular person or object fall within a particular category. For example, theprinciple of distinction does not prohibit an otherwise civilian object from being used for militarypurposes, thereby turning it into a military objective. 99 However, if such an object were seizedfrom the enemy, such seizure would have to have been imperatively demanded by the necessitiesof war. 100 Similarly, persons with medical training or who provide medical care on thebattlefield are not necessarily military medical personnel and need not be identified as such. 101Rather, a State may reserve the ability to use these persons as combatants by refraining fromdesignating them as exclusively engaged in medical activities.

2.5.5 Reinforcing Duties Discriminating in Conducting Attacks and Distinguishing a

Partys Own Persons and Objects. Discriminating in conducting attacks against the enemy anddistinguishing a partys own persons and objects reinforce one another.

A party is not relieved of its obligations to discriminate in conducting attacks by the

failures of its adversary to distinguish its military objectives from protected persons andobjects. 102 Nonetheless, the practical ability of a party to a conflict to discriminate in conductingattacks often depends on the degree to which its enemy has distinguished its military objectivesfrom its protected persons and objects. For example, if enemy forces intermingle with civilians,then a party may be less able to avoid incidentally harming the civilian population.

In addition, the degree to which an enemy force in fact discriminates in conducting

attacks may affect whether a party distinguishes its protected persons and objects from itsmilitary objectives. For example, if enemy forces do not respect the red cross emblem, butinstead specifically attack persons wearing it, then the party receiving these attacks is less likelyto distinguish its medical personnel and transports. 103 Similarly, if insurgents seek to attackcivilians in a non-international armed conflict, positioning military forces near the civilianpopulation may be essential to protecting the civilian population. 104

97 Refer to 5.25.2 (Examples of Ruses), footnote 700 and accompanying text.98 Refer to 5.25.2.1 (Mimicking Other Friendly Forces).99 Refer to 5.16.1 (Protected Persons and Objects).100 Refer to 5.17.2.2 (Seizure or Destruction of Enemy Property to Support Military Operations).101 Refer to 4.9.2 (Requirements for Military Medical and Religious Status).102 Refer to 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty toDiscriminate in Conducting Attacks).103 Refer to 7.15.2.1 (Removal or Obscuration of the Distinctive Emblem).104 Refer to 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to ProtectThem).

652.6 HONOR

Honor demands a certain amount of fairness in offense and defense and a certain mutualrespect between opposing forces. 105

2.6.1 Honor Background and Notes on Terminology. Honor has been vital to thedevelopment of the law of war, which was preceded by warriors codes of honor. 106 Honorcontinues to be vital to giving the law of war effect today.

Honor is also called chivalry. Chivalry is often associated with a specific historicalcontexta code of behavior for knights in Europe during the Middle Ages. Honor may be morereadily understood as incorporating warriors codes from a variety of cultures and time periods.

2.6.2 Certain Amount of Fairness in Offense and Defense. Honor requires a certainamount of fairness in offense and defense. Honor forbids resort to means, expedients, or conductthat would constitute a breach of trust with the enemy. 107

2.6.2.1 Acceptance That Belligerent Rights Are Not Unlimited. In requiring a

certain amount of fairness in offense and defense, honor reflects the principle that parties to aconflict must accept that certain limits exist on their ability to conduct hostilities. For example,parties to the conflict must accept that the right of belligerents to adopt means of injuring theenemy is not unlimited. 108 Here, honor does not address what those limits are so much asrequires that parties accept that there are legal limits that govern their conduct of hostilities. 109105 See, e.g., LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 227 (67) (chivalry arose in the Middle Agesand introduced a certain amount of fairness in offence and defence, and a certain mutual respect); 1958 UKMANUAL 3 (The development of the law of war has been determined by three principles: and thirdly, theprinciple of chivalry, which demands a certain amount of fairness in offence and defence, and a certain mutualrespect between the opposing forces.); 1914 RULES OF LAND WARFARE 9 (The development of the laws andusages of war is determined by three principles. Third, the principle of chivalry, which demands a certain amountof fairness in offense and defense and a certain mutual respect between opposing forces.); UNITED KINGDOM WAROFFICE, MANUAL OF MILITARY LAW, Chapter XIV, The Laws and Usages of War on Land, 234 (3) (1914) (Thedevelopment of the laws and usages of war is determined by three principles. And there is, thirdly, the principleof chivalry, which demands a certain amount of fairness in offence and defence, and a certain mutual respectbetween the opposing forces.).106 See, e.g., LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 20-23 (2000) (describing referencesto warrior codes from ancient Israel, China, India, Greece, Rome, and Islam).107 1940 RULES OF LAND WARFARE 4(c) (chivalry denounces and forbids resort to dishonorable means,expedients, or conduct); 2001 CANADIAN MANUAL 202(7) (An armed conflict is rarely a polite contest.Nevertheless, the concept of chivalry is reflected in specific prohibitions such as those against dishonourable ortreacherous conduct and against misuse of enemy flags or flags of truce.).108 See, e.g., 1899 HAGUE II REG. art. 22 (The right of belligerents to adopt means of injuring the enemy is notunlimited.); HAGUE IV REG. art. 22 (same); CCW preamble (noting the principle of international law that the rightof the parties to an armed conflict to choose methods or means of warfare is not unlimited). Consider AP I art.35(1) (In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is notunlimited.).109 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 583, 585 (11) (DissentingOpinion of Judge Higgins) (The legal principle by which parties to an armed conflict do not have an unlimitedchoice of weapons or of methods of warfare [is intended] to ensure that weapons, both in the context of their use,and in the methods of warfare, must comply with the other substantive rules.).

66This acceptance is a prerequisite for the existence and operation of the law of war in the way thatthe principle of pacta sunt servanda (treaties are binding on parties and must be performed bythem in good faith) provides a necessary foundation for treaties to exist and operate asinstruments that are legally binding on States. 110

Thus, honor may be understood to provide a foundation for obligations that help enforceand implement the law of war or special agreements between belligerents during armedconflict. 111 For example, honor may be understood to provide the foundation for the requirementfor persons to comply with the law of war in good faith. 112 Similarly, POWs are bound to adhereto paroles on their personal honor. 113

2.6.2.2 Prohibition on Conduct That Breaches Trust With the Enemy. In

requiring a certain amount of fairness in offense and defense, honor also forbids resort to means,expedients, or conduct that would constitute a breach of trust with the enemy. In particular,honor requires a party to a conflict to refrain from taking advantage of its opponents adherenceto the law by falsely claiming the laws protections.

Honor forbids such conduct because it may: (1) undermine the protections afforded bythe law of war; (2) impair non-hostile relations between opposing belligerents; and (3) damagethe basis for the restoration of peace short of complete annihilation of one belligerent byanother. 114

For example, enemies must deal with one another in good faith in their non-hostilerelations. 115 And even in the conduct of hostilities, good faith prohibits: (1) killing or woundingenemy persons by resort to perfidy; (2) misusing certain signs; (3) fighting in the enemysuniform; (4) feigning non-hostile relations in order to seek a military advantage; and (5)compelling nationals of a hostile party to take part in the operations of war directed against theirown country. 116 Honor, however, does not forbid parties from using ruses and other lawfuldeceptions against which the enemy ought to take measures to protect itself. 117

Opposing military forces should respect one another outside of the fighting because theyshare a profession and they fight one another on behalf of their respective States and not out of

110 Refer to 1.10.1.1 (Legal Force of Treaties Among States).111 Refer to 18.1.2 (National Obligations to Implement and Enforce the Law of War).112 Refer to 18.3 (Duties of Individual Members of the Armed Forces).113 Refer to 9.11.2 (Parole of POWs).114 Refer to 5.21.1 (Harms From Breaches of Good Faith).115 Refer to 12.2 (Principle of Good Faith in Non-Hostile Relations).116 Refer to 5.21 (Overview of Good Faith, Perfidy, and Ruses).117 Refer to 5.25 (Ruses of War and Other Lawful Deceptions).

67personal hostility. 118 For example, this principle is reflected in the rule that POWs are legally inthe hands of the enemy State and not the individuals or military units who have captured them. 119

2.6.3.1 Honor and Rules for POW Captivity. In demanding a certain mutualrespect between opposing forces, honor animates rules that relate to the treatment of POWs. Forexample, honor is one of the foundations for the humane treatment of POWs. 120 The principle ofhonor is also reflected in rules that require POWs and their captors to treat one another withrespect. For example, POWs must be treated with respect for their honor and person. 121 Asanother example, POWs, with the exception of officers, must salute and show to all officers ofthe Detaining Power the external marks of respect provided for by the regulations applying intheir own forces. 122 In addition, capitulations agreed upon between belligerents must take intoaccount the rules of military honor. 123

2.6.3.2 Honor and the Class of Combatants. In demanding a certain mutual

respect between opposing forces, honor also reflects the premise that combatants are a commonclass of professionals who have undertaken to comport themselves honorably. 124

Honor thus animates the rules that determine who qualifies for privileges of combatantstatus. For example, an armed group must, inter alia, be organized under a responsible

118 See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT & DISCOURSES 12 (1920) (The object of war being thedestruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but assoon as they lay them down and surrender, they cease to be enemies or instruments of the enemy, and become oncemore merely men, whose life no one has any right to take.).119 Refer to 9.2.2 (Responsibility of the Detaining Power).120 See, e.g., Samuel Falle, Chivalry, 113 Proceedings Magazine, Jan. 1987 (During World War II, the Japanesewere portrayed as brutal, subhuman savagesthe hordes of Attila or Genghis Khan. Certainly they did terriblethings, but I was fortunate enough to see something different. It is called chivalry, which the Oxford Dictionarydefines as a medieval knightly system, with its religious, moral, and social code; ideal knights characteristics. Isee it as compassion and magnanimity toward a beaten enemy.); United States, et al. v. Gring, et al., Judgment, ITRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 289 (When, on 8 September 1941, OKW issued itsruthless regulations for Soviet POWs, Canaris wrote to [the defendant] Keitel that under international law the SDshould have nothing to do with this matter. On this memorandum, in Keitels handwriting, dated 23 September andinitialed by him, is the statement: The objections arise from the military concept of chivalrous warfare. This is thedestruction of an ideology. Therefore I approve and back the measures.).121 Refer to 9.5.1 (Respect for Their Persons and Honor).122 Refer to 9.22.3 (Saluting Between POWs and Officers of the Detaining Power).123 Refer to 12.8.3 (Rules of Military Honor).124 SPAIGHT, AIR POWER AND WAR RIGHTS 109-10 (Chivalry is difficult to define but it means broadly, the wagingof war in accordance with certain well-recognised formalities and courtesies. It is an influence quite distinct fromthe humanitarian one; indeed, it prevailed in its full vigour at a time in which humanitarian interests were otherwiseentirely disregarded: witness the cruelty of the Black Prince to the people of Limoges. It is against free from anynecessary connection with Christianity; Saladin was a chivalrous as Coeur-de-Lion. It is, indeed, the spirit pure andsimple, of knighthood. It expresses in effect the feeling of the combatants that they belong to a caste, that theirencounter in arms is a high ceremonial, that an opponent is entitled to all honour and respect, that your enemy,though he is your enemy, is at the same time a brother in the same noble family of knights-at-arms. Untilgunpowder came to democratise war, chivalry and chivalry alone was an influence making for moderation in war. Itwas the first motive power for the creation of a restrictive law of war.).

68command and conduct its operations in accordance with the law of war in order for its membersto be entitled to POW status during international armed conflict. 125 On the other hand, privatepersons are generally denied the privileges of combatant status because they do not belong to thisclass of combatants. 126

The principle that combatants share a common class has also been a foundation for thetrial of enemy combatants by military tribunals. 127 For example, the GPW expresses apreference for POWs to be tried by military courts rather than civilian courts. 128

125 Refer to 4.6.1 (GPW 4A(2) Conditions in General).126 Refer to 4.18.3 (Private Persons Who Engage in Hostilities Lack of the Privileges of Combatant Status).127 General Douglas MacArthur, Action of the Confirming Authority, Feb. 7, 1946, United States v. Yamashita (U.S.Military Commission, Manila, Dec. 7, 1945), LEVIE, DOCUMENTS ON POWS 298 (It is not easy for me to pass penaljudgment upon a defeated adversary in a major military campaign. I have reviewed the proceedings in vain searchfor some mitigating circumstance on his behalf. I can find none. Rarely has so cruel and wanton a record beenspread to public gaze. Revolting as this may be in itself, it pales before the sinister and far reaching implicationthereby attached to the profession of arms. The soldier, be he friend or foe, is charged with the protection of theweak and unarmed. It is the very essence and reason for his being. When he violates this sacred trust, he not onlyprofanes his entire cult but threatens the very fabric of international society. The traditions of fighting men are longand honorable. They are based upon the noblest of human traits, - sacrifice. This officer, of proven field merit,entrusted with high command involving authority adequate to responsibility, has failed this irrevocable standard; hasfailed his duty to his troops, to his country, to his enemy, to mankind; has failed utterly his soldier faith. Thetransgressions resulting therefrom as revealed by the trial are a blot upon the military profession, a stain uponcivilization and constitute a memory of shame and dishonor that can never be forgotten. Peculiarly callous andpurposeless was the sack of the ancient city of Manila, with its Christian population and its countless historic shrinesand monuments of culture and civilization, which with campaign conditions reversed had previously been spared.).128 Refer to 9.26.3 (Trial by Military Courts).

69 III Application of the Law of War

Chapter Contents

3.1 Introduction 3.2 Situations to Which the Law of War Applies 3.3 Status of the Parties and the Law of War 3.4 When Jus in Bello Rules Apply 3.5 Relationship Between Jus in Bello and Jus ad Bellum 3.6 Reciprocity and Law of War Rules 3.7 Applying Rules by Analogy 3.8 End of Hostilities and the Application of the Law of War 3.9 Law of War Duties Also Applicable in Peace

3.1 INTRODUCTION

Whether a particular law of war rule applies to a situation may depend on a variety ofissues, such as (1) whether a state of war, hostilities, or armed conflict exists; 1 (2) whethera party is recognized as a belligerent or as a State; 2 or (3) whether an enemy State has acceptedthat law of war rule. 3 This Chapter addresses these and other broad issues underlying theapplication of law of war rules. Later chapters address issues in applying specific rules,including considerations specific to those rules. For example, whether a specific provision of theGPW applies to a particular person may depend on whether that person is entitled to POW statusunder the GPW. 4

Many of the legal issues underlying the application of law of war rules may be confusingbecause they are complex and may appear to result in contradictory legal positions. Forexample, a State may be at war for some purposes, but not for other purposes. 5 The legalcharacter of U.S. military operations may change rapidly. For example, some operations maybegin as military operations other than war and later evolve into war, or an international armedconflict may change into a non-international armed conflict.

Although this Chapter addresses how rules apply as a matter of law, DoD practice hasoften been to act consistently with law of war rules, even in certain cases where these rules mightnot technically be applicable as a matter of law.

1 Refer to 3.4 (When Jus in Bello Rules Apply).2 Refer to 3.3 (Status of the Parties and the Law of War).3 Refer to 3.6.1 (Treaty Provisions That Provide for Reciprocity in the Scope of Application of the Treaty).4 Refer to 9.3 (POW Status).5 Refer to 1.5 (War as a Legal Concept).

70 3.1.1 DoD Practice of Applying Law of War Rules Even When Not TechnicallyApplicable. DoD policy and doctrine make clear the importance of compliance with,implementation of, and enforcement of the law of war. 6

In addition, DoD practice has often been to act consistently with law of war rules, even incertain cases where these rules might not technically be applicable as a matter of law. Thismeans, for example, that DoD practice has often been to act consistently with a particular law ofwar treaty rule, even if that rule might not apply as a matter of treaty law. Moreover, DoDpractice has sometimes been to adhere to the standards in the law of war, even in situations thatdo not constitute war or armed conflict, because these standards in the law of war reflectlegal standards that must be adhered to in all circumstances (i.e., whether there is a state ofarmed conflict or not).

3.1.1.1 Reasons for Acting Consistent With a Treaty Rule, Even Though theTreaty Does Not Apply. DoD practice has often been to act consistently with a treaty rule, evenif that rule might not apply as a matter of treaty law. First, it may be appropriate to actconsistently with the terms of a treaty (even as applied in dealings with a non-Party to a treaty)because the general principles of the treaty have been determined to be declaratory of customaryinternational law. 7 In such cases, practice that is consistent with the treatys terms with regard toa particular matter likewise would be in compliance with applicable customary international law.

In addition, it may be important to act consistently with the terms of the treaty becausethe treaty represents modern international public opinion as to how military operations shouldbe conducted. 8 Other policy considerations, including efficacious training standards or closerelations with coalition partners, may lead to a policy decision that DoD practice should beconsistent with a particular law of war treaty rule, even if that rule does not apply to U.S. forcesas a matter of law.

3.1.1.2 Applying Law of War Standards as Reflecting Minimum Legal Standards.

DoD practice also has been to adhere to certain standards in the law of war, even in situationsthat do not constitute war or armed conflict, because these law of war rules reflect standardsthat must be adhered to in all circumstances. Applying these standards provides assurance that

6 Refer to 18.1.1 (DoD Policy on Implementing and Enforcing the Law of War).7 1956 FM 27-10 (Change No. 1 1976) Foreword (Moreover, even though States may not be parties to, or strictlybound by, the 1907 Hague Conventions and the 1929 Geneva Convention relative to the Treatment of Prisoners ofWar, the general principles of these conventions have been held declaratory of the customary law of war to which allStates are subject. For this reason, the United States has adopted the policy of observing and enforcing the terms ofthese conventions in so far as they have not been superseded by the 1949 Geneva Conventions which necessarilygovern the relations between the parties to the latter (see pars. 6 and 7 of the text).).8 1956 FM 27-10 (Change No. 1 1976) 7a (These treaty provisions are in large part but formal and specificapplications of general principles of the unwritten law. While solemnly obligatory only as between the partiesthereto, they may be said also to represent modern international public opinion as to how belligerents and neutralsshould conduct themselves in the particulars indicated. For these reasons, the treaty provisions quoted herein will bestrictly observed and enforced by United States forces without regard to whether they are legally binding upon thiscountry. Military commanders will be instructed which, if any, of the written rules herein quoted are not legallybinding as between the United States and each of the States immediately concerned, and which, if any, for thatreason are not for the time being to be observed or enforced.).

71the standards adhered to equal or exceed those required. This practice has been reflected in DoDpolicies to comply with the law of war, or to comply with the spirit and principles of the law ofwar, during military operations outside the context of armed conflict. 9

Certain prohibitions and certain other rules in the law of war that reflect customaryinternational law have been described as reflecting elementary considerations of humanity. 10These elementary considerations of humanity have been understood to be even more exactingin peace than in war. 11 Thus, these legal standards, at a minimum, must be adhered to in allcircumstances.

In particular, Common Article 3 of the 1949 Geneva Conventions reflects a minimum

yardstick of humane treatment protections for all persons taking no active part in hostilities,including members of armed forces who have laid down their arms and those placed hors decombat by sickness, wounds, detention, or any other cause. 12 The standards in Common Article3 of the 1949 Geneva Conventions may be understood to reflect minimum humane treatmentstandards for detainees in any military operation, including those during international or non-international armed conflict or occupation, and those military operations that are not addressedby the law of war. Additional rules will apply depending on the particular context. For example,the United States has supported adherence to the guarantees in Article 75 of AP I duringinternational armed conflict. 13

9 See DOD DIRECTIVE 2311.01E, DoD Law of War Program, 4.1 (May 9, 2006, Certified Current as of Feb. 22,2011) (Members of the DoD Components comply with the law of war during all armed conflicts, however suchconflicts are characterized, and in all other military operations.); DOD DIRECTIVE 5100.77, DoD Law of WarProgram, 5.3 (Dec. 9, 1998) (The Heads of the DoD Components shall: 5.3.1. Ensure that the members of theirDoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized,and with the principles and spirit of the law of war during all other operations.). Refer to 18.1.1 (DoD Policy onImplementing and Enforcing the Law of War).10 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (79) (It isundoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to therespect of the human person and elementary considerations of humanity as the Court put it in its Judgment of 9April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions haveenjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they haveratified the conventions that contain them, because they constitute intransgressible principles of internationalcustomary law.).11 Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22 (The obligationsincumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existenceof a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent dangerto which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII,which is applicable in time of war, but on certain general and well-recognized principles, namely: elementaryconsiderations of humanity, even more exacting in peace than in war; the principle of the freedom of maritimecommunication; and every States obligation not to allow knowingly its territory to be used for acts contrary to therights of other States.).12 Refer to 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).13 Refer to 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).

723.2 SITUATIONS TO WHICH THE LAW OF WAR APPLIES

Although the law of war is commonly understood as applying to the conduct of hostilitiesand the protection of war victims, the law of war addresses other situations as well. The law ofwar establishes:

rules governing the resort to force (jus ad bellum); 14

rules between enemies for the conduct of hostilities and the protection of war victims in international and non-international armed conflict; 15

rules between belligerents and neutrals; 16

rules for military occupation; 17 and

duties during peacetime that help implement the above rules. 18

In addition, these rules in the law of war can sometimes be applied by analogy to othercontexts. 19

3.3 STATUS OF THE PARTIES AND THE LAW OF WAR

The law of war distinguishes between: (1) international armed conflicts, i.e., conflictsbetween States; and (2) other armed conflicts, typically called non-international armed conflicts.

Three situationsunrecognized governments, recognition of belligerency, and national

liberation movementsmerit further discussion because they may affect whether law of warrules relating to international armed conflict apply.

3.3.1 International Armed Conflict and Non-International Armed Conflict. The law ofwar treats situations of war, hostilities, or armed conflict differently based on the legalstatus of parties to the conflict. If two or more States oppose one another, then this type ofarmed conflict is known as an international armed conflict because it takes place betweenStates. However, a state of war can exist when States are not on opposite sides of the conflict. 20

14 Refer to 1.11 (Jus ad Bellum).15 Chapter V addresses the conduct of hostilities.16 Chapter XV addresses the law of neutrality.17 Refer to 11.2 (When Military Occupation Law Applies).18 Refer to 3.9 (Law of War Duties Also Applicable in Peace).19 Refer to 3.7 (Applying Rules by Analogy).20 See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (noting that an armed conflict described in CommonArticle 3 of the 1949 Geneva Conventions does not involve a clash between nations.); The Prize Cases, 67 U.S.635, 666 (1863) (it is not necessary to constitute war, that both parties should be acknowledged as independentnations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against theother.).

73These other types of conflict are described as not of an international character or non-international armed conflict. 21 For example, two non-State armed groups warring against oneanother or States warring against non-State armed groups may be described as non-internationalarmed conflict, even if international borders are crossed in the fighting. 22

The law of war rules applicable to non-international armed conflict are addressed inChapter XVII. 23 There are a number of important differences between the law applicable tointernational armed conflict and the law applicable to non-international armed conflict. 24

3.3.1.1 Application of Jus in Bello Rules Does Not Necessarily Affect the LegalStatus of Parties. Although the legal status of an opponent affects the character of the conflictand what rules apply as a matter of law, the application of jus in bello rules does not necessarilyaffect the legal status of parties to a conflict. For example, a belligerent may, as a policy matter,afford a person POW protections and treatment without affording that person legal status as aPOW.25 Similarly, the application of humanitarian rules, such as those reflected in CommonArticle 3 of the 1949 Geneva Conventions, towards enemy non-State armed groups does notaffect their legal status (e.g., such application does not amount to recognizing the group as lawfulbelligerents or as the legitimate government of a State). 26

3.3.1.2 Mixed Conflicts Between Opposing States and Non-State Armed Groups.Rather than viewing a situation as either an international armed conflict or a non-internationalarmed conflict, it may be possible to characterize parts of a conflict as international in character,while other parts of that armed conflict may be regarded as non-international in character. 27 Forexample, under this view, during a situation involving conflict between a variety of States andnon-State armed groups, as between the States, the rules of international armed conflict would

21 See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33, 44 (D.C. Cir. 2005) (Williams, J., concurring) (Non-state actorscannot sign an international treaty. Nor is such an actor even a Power that would be eligible under Article 2 (P3)to secure protection by complying with the Conventions requirements. Common Article 3 fills the gap, providingsome minimal protection for such non-eligibles in an armed conflict not of an international character occurring inthe territory of one of the High Contracting Parties. The gap being filled is the non-eligible partys failure to be anation. Thus the words not of an international character are sensibly understood to refer to a conflict between asignatory nation and a non-state actor. The most obvious form of such a conflict is a civil war. But given theConventions structure, the logical reading of international character is one that matches the basic derivation of theword international, i.e., between nations. Thus, I think the context compels the view that a conflict between asignatory and a non-state actor is a conflict not of an international character.).22 Refer to 17.1.1.2 (NIAC and Internal Armed Conflict).23 Refer to 17.1 (Introduction).24 Refer to 17.1.3 (Important Differences Between the Law Applicable to International Armed Conflict and theLaw Applicable to Non-International Armed Conflict).25 Refer to 9.3.1 (POW Status Versus POW Protections).26 Refer to 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).27 Christopher Greenwood, International Humanitarian Law and the Tadic Case, 7 EUROPEAN JOURNAL OFINTERNATIONAL LAW 265, 271 (1996) ([T]here is nothing intrinsically illogical or novel in characterizing someaspects of a particular set of hostilities as an international armed conflict while others possess an internal character.Conflicts have been treated as having such a dual aspect where a Government is simultaneously engaged inhostilities with a rebel movement and with another State which backs that movement.).

74apply, while as between the States and non-State armed groups, the rules of non-internationalarmed conflicts would apply. 28

3.3.2 Unrecognized Governments. Even if a State does not recognize an opponent as thelegitimate government of a State, under certain circumstances, rules of international armedconflict may apply to a conflict between a State and a government that it does not recognize. Forexample, members of the regular armed forces who profess allegiance to a government orauthority not recognized by the Detaining Power nonetheless would be entitled to POW status ifthey fall into the power of the enemy during international armed conflict. 29

3.3.3 State Recognition of Armed Groups as Belligerents. In certain cases, States haverecognized armed groups as belligerents for certain legal purposes.

For the purpose of applying humanitarian rules, recognition of the armed group as havingbelligerent rights is neither a prerequisite for nor a result of applying humanitarian rules. 30

3.3.3.1 Recognition by Outside States of a Rebel Faction as a Belligerent in a

Civil War. In the past, in cases of a major civil war in a State, other States have recognized therebel faction as a belligerent with the effect of treating the rebels as though they were a Statewith belligerent rights under the law of neutrality. 31

28 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits,Judgment, 1986 I.C.J. 14, 114 (219) (The conflict between the contras forces and those of the Government ofNicaragua is an armed conflict which is not of an international character. The acts of the contras towards theNicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas theactions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.Because the minimum rules applicable to international and to non-international conflicts are identical, there is noneed to address the question whether those actions must be looked at in the context of the rules which operate for theone or for the other category of conflict.); Prosecutor v. Thomas Lubanga Dyilo, ICC Trial Chamber I, ICC-01/04-01/06, Judgment 258 (563) (Mar. 14, 2012) (Similarly, although there is evidence of direct intervention on thepart of Uganda, this intervention would only have internationalised the conflict between the two states concerned(viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC [Lubangas militia] was a party was not adifference arising between two states but rather protracted violence carried out by multiple non-state armed groups,it remained a non-international conflict notwithstanding any concurrent international armed conflict betweenUganda and the DRC.).29 Refer to 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority NotRecognized by the Detaining Power).30 Refer to 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).31 For example, STEFAN TALMON, RECOGNITION OF GOVERNMENTS IN INTERNATIONAL LAW 309 (1998) (Prior toits installation in Nicaraguan territory the PJNR [Provisional Junta of National Reconstruction] was recognized asthe Government of Nicaragua by the following States: Panama (22 June 1979), Grenada (23 June 1979), Costa Rica(18 July 1969). In a rare case of recognition of belligerency in modern history, the members of the Andean Group(Bolivia, Colombia, Ecuador, Peru, and Venezuela) declared on 17 June 1979 that they had recognized both sides inthe Nicaraguan conflict as belligerents.); B.F. Butler, Attorney General, Piracy Upon the High Seas, May 17,1836, 3 OPINIONS OF THE ATTORNEY GENERAL 120, 122 (1852) (The existence of a civil war between the people ofTexas and the authorities and people of the other Mexican States, was recognised by the President of the UnitedStates at an early day in the month of November last. Official notice of this fact, and of the Presidents intention topreserve the neutrality of the United States, was soon after given to the Mexican government.); The SantissimaTrinidad, 20 U.S. 283, 337 (1822) (The government of the United States has recognized the existence of a civil warbetween Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow

75 Historically, certain conditions had to be satisfied before outside States could recognize anon-State armed group as a belligerent:

a general state of armed conflict within a territory;

the armed group occupies and administers a significant portion of national territory;

the armed group acts under responsible chain of command and respects the laws of war; and

circumstances exist that make it necessary for outside States to define their attitude toward the conflict. 32

This doctrine has not been invoked often, especially after the adoption of the Charter ofthe United Nations, and the unwarranted recognition of an insurgent group likely would, at least,be considered an unfriendly act against a State engaged in hostilities against that group. 33

3.3.3.2 Assertion of War Powers by a State Engaged in Hostilities Against a Non-

State Armed Group. Occasionally, a State that has been engaged in hostilities against a non-State armed group has taken actions that have recognized the belligerency of the non-State armedgroup, at least for certain purposes. For example, President Lincolns proclamation of ablockade during the U.S. Civil War was viewed as recognizing the existence of a state of war, atleast for the purposes of imposing the blockade on foreign vessels seeking to trade with theConfederacy. 34

to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us abelligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in theexercise of those rights.).32 HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 175-76 (1947) (There is general agreement as tothe nature of the conditions which impose the duty of recognition of belligerencyor which, according to others,justify recognition of belligerency. These conditions are as follows: first, there must exist within the State an armedconflict of a general (as distinguished from a purely local) character; secondly, the insurgents must occupy andadminister a substantial portion of national territory; thirdly, they must conduct the hostilities in accordance with therules of war and through organized armed forces acting under a responsible authority; fourthly, there must existcircumstances which make it necessary for outside States to define their attitude by means of recognition ofbelligerency.).33 See, e.g., HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 239 (1947) (If a distant continentalState in no way directly concerned with the hostilities at sea were to recognize the insurgents as belligerents, itwould lay itself open to the charge of a gratuitous gesture unfriendly to the lawful government and merely calculatedto encourage the rebellion.).34 The Prize Cases, 67 U.S. 635, 670 (1862) (Whether the President, in fulfilling his duties as Commander-in-chiefin suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarmingproportions as will compel him to accord to them the character of belligerents is a question to be decided by him,and this Court must be governed by the decisions and acts of the political department of the Government to whichthis power was entrusted. He must determine what degree of force the crisis demands. The proclamation ofblockade is itself official and conclusive evidence to the Court that a state of war existed which demanded andauthorized a recourse to such a measure under the circumstances peculiar to the case.).

76 3.3.3.3 Recognition of Friendly Armed Groups as Lawful Belligerents. In somecases, a State has recognized an armed group that fights alongside it as a belligerent. 35 Onereason for such recognition might be to seek to persuade other States that have not recognizedthe armed group as a belligerent, such as an enemy State, to grant the privileges of combatantstatus to members of those armed groups. 36 An armed group that has been recognized in thisway by a friendly State may be viewed as analogous to an organized resistance movement thatbelongs to a State that is a party to a conflict. 37

3.3.4 AP I Provision on National Liberation Movements. AP I treats as international

armed conflicts armed conflicts in which peoples are fighting against colonial domination andalien occupation and against racist regimes in the exercise of their right of self-determination. 38

The United States has strongly objected to this provision as making the applicability ofthe rules of international armed conflict turn on subjective and politicized criteria that wouldeliminate the distinction between international and non-international conflicts. 39 The UnitedStates has understood these types of conflicts to be non-international armed conflicts. 40

35 For example, Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland)P.C.I.J. (series A) No. 7, at 28 (At the time of the conclusion of those two Conventions, Poland was not recognizedas a belligerent by Germany; it is, however, only on the basis of such recognition that an armistice could have beenconcluded between those two Powers. The Principal Allied Powers had, it is true, recognized the Polish armedforces as an autonomous, allied and co-belligerent (or belligerent) army. This army was placed under the supremepolitical authority of the Polish National Committee with headquarters in Paris.); Statement of the Secretary ofState, September 1918, reprinted in Charles Henry Hyde, The Recognition of the Czecho-Slovaks as Belligerents, 13AJIL 93-95 (1919) (The Government of the United States recognizes that a state of belligerency exists between theCzecho-Slovaks thus organized and the German and Austro-Hungarian Empires. It also recognizes the Czecho-Slovak National Council as a de facto belligerent government, clothed with proper authority to direct the militaryand political affairs of the Czecho-Slovaks.).36 For example, Declaration Concerning Czechoslovak Army, Sept. 7, 1944, 11 DEPARTMENT OF STATE BULLETIN263 (Sept. 10, 1944) (The United States Government therefore declares: (3) In these circumstances reprisals bythe German military authorities against the soldiers of the Czechoslovak Army violate the rules of war by whichGermany is bound. The United States Government, therefore, solemnly warns all Germans who take part in or arein any way responsible for such violations that they do so at their peril and will be held answerable for theircrimes.).37 Compare 4.6.2 (Belonging to a Party to the Conflict).38 AP I art. 1(4) (The situations referred to in the preceding paragraph [i.e., the situations referred to in Article 2common to those Conventions] include armed conflicts in which peoples are fighting against colonial dominationand alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined inthe Charter of the United Nations and the Declaration on Principles of International Law concerning FriendlyRelations and Co-operation among States in accordance with the Charter of the United Nations.).39 See Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III-IV (But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would underminehumanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as aninternational conflict any so-called war of national liberation. Whether such wars are international or non-international should turn exclusively on objective reality, not on ones view of the moral qualities of each conflict.To rest on such subjective distinctions based on a wars alleged purposes would politicize humanitarian law andeliminate the distinction between international and non-international conflicts. It would give special status to warsof national liberation, an ill-defined concept expressed in vague, subjective, politicized terminology.).40 Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGEFROM THE PRESIDENT TRANSMITTING AP II 1-2 (This Article technically excludes four types of situations from the

77Moreover, the United States has not accepted this provision in the context of the CCW. 41 TheUnited States has expressed the view that it would not be appropriate to treat this provision ofAP I as customary international law. 42

3.4 WHEN JUS IN BELLO RULES APPLY

Jus in bello treaties often provide that they apply in cases of declared war or of anyother armed conflict, even if the state of war is not recognized by them. 43 This standard hasalso been understood to result in the application of the customary law of war. 44

A case of declared war or any other armed conflict for the purpose of determiningwhether parties must comply with jus in bello rules may be understood as arising in two ways:(1) when a party intends to conduct hostilities; or (2) when parties are actually conductinghostilities.

War, hostilities, and armed conflict may be defined differently for other legalpurposes. 45 It must be emphasized that the discussion in this section is for the purpose ofassessing whether jus in bello restrictions apply and not necessarily for other purposes. Forexample, the fact that jus in bello restrictions apply is not determinative of whether a Statesactions are lawful under jus ad bellum. 46 Similarly, the fact that jus in bello restrictions apply is

scope of the Protocol: (2) the so-called wars of national liberation defined as international armed conflicts byArticle 1(4) of Protocol I Additional to the 1949 Geneva Conventions; However, the exclusion of the second andthird categories is inappropriate. The second category--so-called liberation wars defined in Protocol I--are often infact non-international conflicts, and are distinguished by Protocol I from other non-international conflicts only onthe basis of highly politicized and undesirable criteria which detract from the integrity of international humanitarianlaw; the United States should therefore reject this distinction.).41 Refer to 19.21.1.2 (U.S. Reservation to Article 7(4)(b) of the CCW).42 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE DIGESTOF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (The new provisions on wars ofnational liberation and prisoners of war in Protocol I clearly do not reflect the practice of states. Indeed, they wereadopted precisely because states did not accord prisoner-of-war status in such conflicts. It is most unlikely thatstates will in the future choose to accord prisoner-of-war status in conflicts described as wars of national liberation.Accordingly, it is the view of the United States that it would be inappropriate to treat these provisions as part ofcustomary international law under any circumstances.).43 See, e.g., GWS art. 2 (The convention applies to all cases of declared war or of any other armed conflict whichmay arise between two or more of the High Contracting Parties, even if the state of war is not recognized bythem.); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURAL PROPERTYCONVENTION art. 18 (the present Convention shall apply in the event of declared war or of any other armed conflictwhich may arise between two or more of the High Contracting Parties, even if the state of war is not recognized byone or more of them.); CCW art. 1 (This Convention and its annexed Protocols shall apply in the situationsreferred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims,).44 1956 FM 27-10 (Change No. 1 1976) 8b (The customary law of war applies to all cases of declared war or anyother armed conflict which may arise between the United States and other nations, even if the state of war is notrecognized by one of them. The customary law is also applicable to all cases of occupation of foreign territory bythe exercise of armed force, even if the occupation meets with no armed resistance.).45 Refer to 1.5.2 (Different Definitions of War for Different Legal Purposes).46 Refer to 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).

78not determinative of whether the permissions that are sometimes viewed as inherent in jus inbello rules may be relied upon by a State or non-State actor. 47

If a State chooses to go to war, then it is bound by jus in bello rules for the conduct ofthose hostilities.48 For example, if a State considers it necessary to respond to attacks withmilitary force, then those military operations must comply with jus in bello rules. 49

The fact that the intention to conduct hostilities gives rise to obligations to comply withthe law of war is important because law of war obligations must be taken into account evenbefore the fighting actually begins, such as in the planning of military operations. 50 Similarly,certain obligations under the GPW and the GC are triggered by the onset of hostilities, and itmay be necessary to implement these obligations even before the fighting actually begins. 51 Asanother example, the party that is subject to attack is often in a position to take feasibleprecautions for the protection of the civilian population even before the fighting begins. 52

3.4.1.1 Declarations of War or Other Official Recognition by States of a State of

Hostilities. The application of the 1949 Geneva Conventions and other law of war treaties tocases of declared war is an example of how jus in bello restrictions apply when a party intendsto conduct hostilities. 53 Traditionally, a State could create a state of hostilities with another State47 Refer to 1.3.3.2 (Law of War as Permissive Law).48 L. OPPENHEIM, II INTERNATIONAL LAW 66 (2nd ed., 1912) (But if [States] choose to go to war they have tocomply with the rules laid down by International Law regarding the conduct of war and the relations betweenbelligerents and neutral States.).49 For example, Patrick F. Philbin, Deputy Assistant Attorney General, Legality of the Use of Military Commissionsto Try Terrorists, Nov. 6, 2001, 25 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 238, 276 (In addition, the UnitedStates has determined that it is necessary to respond to the attacks with military force. That decision is significantbecause one element often cited for determining whether a situation involving a non-state actor rises to the level ofan armed conflict (for example, for purposes of common Article 3 of the Geneva Conventions) is whether a stateresponds with its regular military forces. The United States has urged this position. See 3 U.S. Practice 2, at3443; see also G.I.A.D. Draper, The Red Cross Conventions 15-16 (1958) (under common Article 3, armedconflict exists when the government is obliged to have recourse to its regular military forces). Here, thiscriterion is overwhelmingly satisfied. As outlined above, the United States has found it necessary to respond with amassive use of military force. The current operations in Afghanistan and continuing preparations for a sustainedcampaign easily establish that the situation here involves an armed conflict for purposes of international law.).50 Refer to 18.8 (Considering Law of War Obligations in the Planning of Military Operations).51 Refer to 9.4 (National-Level GPW Implementation Measures); 10.2 (National-Level GC ImplementationMeasures).52 Refer to 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the PartySubject to Attack).53 See, e.g., GWS art. 2 (The convention applies to all cases of declared war between two or more of the HighContracting Parties); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURALPROPERTY CONVENTION art. 18 (the present Convention shall apply in the event of declared war between two ormore of the High Contracting Parties); CCW art. 1 (This Convention and its annexed Protocols shall apply in thesituations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of WarVictims,).

79simply by providing objective evidence of its decision to resort to force through formaldeclarations that hostilities exist between them. 54

Although States generally no longer file formal declarations of war with one another,officials may make public statements that are like declarations of war in that they provide noticeof a state of hostilities. 55 For example, States may make statements that indicate their view thatthey are engaged in armed conflict in the context of reporting measures taken in the exercise oftheir inherent right of self-defense to the U.N. Security Council. 56 Similarly, the authorizationby Congress of the use of military force has been interpreted as triggering the application ofcertain parts of the law of war. 57

These types of statements concerning jus ad bellum may be probative of the applicabilityof jus in bello restrictions. For example, a statement by a State indicating that it had suffered awrongful attack under jus ad bellum would also indicate that the State viewed jus in bellorestrictions as applicable to its adversarys operations against it and its own military operationsagainst its adversary. 58

Similarly, statements by States that justify the legality of their actions or assert authorityunder jus in bello rules may also provide evidence that States have the intention of conducting

54 See, e.g., Convention (III) Relative to the Opening of Hostilities, art. 1, Oct. 18, 1907, 36 STAT. 2259, 2271 (TheContracting Powers recognize that hostilities between themselves must not commence without previous and explicitwarning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration ofwar.); Eliza Ann and others, 1 DODSON 244, 247 (Mar. 9, 1813) (a declaration of war proves the existence ofactual hostilities on one side at least, and puts the other party also into a state of war, though he may, perhaps, thinkproper to act on the defensive only.).55 See, e.g., Navios Corp. v. The Ulysses II, 161 F. Supp. 932, 943 (D. Md. 1958) (concluding that a speech byPresident Nasser of Egypt of November 1, confirmed by the statement of November 3, constituted a declaration ofwar even under the technical requirements of international law.), affirmed, 260 F.2d 959 (4th Cir. 1958).56 Refer to 1.11.5.6 (Reporting to the U.N. Security Council).57 Talbot v. Seeman, 5 U.S. 1, 28 (1801) (Marshall, C.J.) (It is not denied, nor in the course of the argument has itbeen denied, that congress may authorize general hostilities, in which case the general laws of war apply to oursituation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must benoticed.).58 For example, John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarksat Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws, Sept. 16, 2011 (First,our definition of the conflict. As the President has said many times, we are at war with al-Qaida. In an indisputableact of aggression, al-Qaida attacked our nation and killed nearly 3,000 innocent people. And as we were remindedjust last weekend, al-Qaida seeks to attack us again. Our ongoing armed conflict with al-Qaida stems from ourrightrecognized under international lawto self defense. An area in which there is some disagreement is thegeographic scope of the conflict. The United States does not view our authority to use military force against al-Qaida as being restricted solely to hot battlefields like Afghanistan. Because we are engaged in an armed conflictwith al-Qaida, the United States takes the legal position that in accordance with international lawwe have theauthority to take action against al-Qaida and its associated forces without doing a separate self-defense analysiseach time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral actionif or when other governments are unwilling or unable to take the necessary actions themselves. That does not meanwe can use military force whenever we want, wherever we want. International legal principles, including respect fora states sovereignty and the laws of war, impose important constraints on our ability to act unilaterallyand on theway in which we can use forcein foreign territories.).

80hostilities and that jus in bello restrictions apply to the activities that will effectuate thoseintentions. 59

3.4.1.2 Non-State Armed Groups With the Intention of Conducting Hostilities. A

non-State armed group, such as a rebel group, might also intend to conduct hostilities.60 Non-State armed groups are similarly bound by the restrictions in the law of war for the conduct ofhostilities when they intend to conduct hostilities. 61 However, in contrast to States, non-Statearmed groups lack competent authority. 62 Thus, there would not be a basis for non-State armedgroups to claim the permissions that may be viewed as inherent in parts of the law of war. 63 Forexample, members of a non-State group may be subject to prosecution under a States domesticlaw for their participation in hostilities against it. 64

3.4.2 Act-Based Test for Applying Jus in Bello Rules. Jus in bello rules apply whenparties are actually conducting hostilities, even if the war is not declared or if the state of war is

59 Legal and Practical Consequences of a Blockade of Cuba, Oct. 19, 1962, 1 SUPPLEMENTAL OPINIONS OF THEOFFICE OF LEGAL COUNSEL 486, 488-89 (2013) (The declaration of a state of war was helpful in ascertaining therights and obligations of neutrals in a given situation. Apart from this, however, it served little function. War itself,whatever its reason, was legal self-help, and so were lesser measures if such could be said to exist. Whether or not anation declared a state of war it would be found by others to exist if that state were claiming rights, such asblockade, normally associated with war.). For example, National Defense Authorization Act for Fiscal Year 2012 1021 (Congress affirms that the authority of the President to use all necessary and appropriate force pursuant tothe Authorization for Use of Military Force (Public Law 10740; 50 U.S.C. 1541 note) includes the authority for theArmed Forces of the United States to detain covered persons (as defined in subsection (b)) pending dispositionunder the law of war.); Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of Enemy PersonnelCaptured During URGENT FURY, DAJA-IA 1983/7031 (Nov. 4, 1983), III CUMULATIVE DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3452, 3454 (considering, inter alia, the fact that [t]heDepartment of State, in a press release on 4 November 9 [1984], cited the GPW as authority for U.S. detention ofCuban Grenadan military personnel in concluding that de facto hostilities existed on Grenada and that the GenevaConventions do apply.) (insertion reflect in the Digest).60 For example, Hamdan v. Rumsfeld, 548 U.S. 557, 687 (2006) (Thomas, J., dissenting) (According to the StateDepartment, al Qaeda declared war on the United States as early as August 1996. In February 1998, al Qaedaleadership issued another statement ordering the indiscriminateand, even under the laws of war as applied tolegitimate nation-states, plainly illegalkilling of American civilians and military personnel alike. This was notmere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center inNew York City in 1993, the bombing of the Khobar Towers in Saudi Arabia in 1996, the bombing of the U. S.Embassies in Kenya and Tanzania in 1998, and the attack on the U. S. S. Cole in Yemen in 2000.) (internalcitations omitted). See also United States v. Burr, 25 F. Cas. 201, 203 (C.C.D. Va. 1807) (Marshall, C.J.)(explaining in the context of a prosecution of rebels for treason that war might be levied without a battle, or theactual application of force to the object on which it was designed to act; that a body of men assembled for thepurpose of war, and being in a posture of war, do levy war; and from that opinion I have certainly felt no dispositionto recede. But the intention is an indispensable ingredient in the composition of the fact; and if war may be leviedwithout striking the blow, the intention to strike must be plainly proved.).61 Refer to 17.2.4 (Binding Force of the Law of War on Insurgents and Other Non-State Armed Groups).62 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).63 Refer to 1.3.3.2 (Law of War as Permissive Law).64 Refer to 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

81not recognized by them. 65 The de facto existence of an armed conflict is sufficient to triggerobligations for the conduct of hostilities. 66

The United States has interpreted armed conflict in Common Article 2 of the 1949Geneva Conventions to include any situation in which there is hostile action between the armedforces of two parties, regardless of the duration, intensity or scope of the fighting. 67

3.4.2.1 Reasons for States to Seek to Deny the Existence of Hostilities. Stateshave specified that jus in bello rules apply even if a state of hostilities is not recognized by thembecause States have frequently denied that they are at war. And, in some cases, this denial hasresulted in a refusal to comply with jus in bello obligations. 68

65 See, e.g., GWS art. 2 (The convention applies to all cases of declared war or of any other armed conflict whichmay arise between two or more of the High Contracting Parties, even if the state of war is not recognized by them.)(emphasis added); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURALPROPERTY CONVENTION art. 18 (the present Convention shall apply in the event of declared war or of any otherarmed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is notrecognized by one or more of them.) (emphasis added); CCW art. 1 (This Convention and its annexed Protocolsshall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for theProtection of War Victims,).66 GPW COMMENTARY 22-23 (There is no need for a formal declaration of war, or for the recognition of theexistence of a state of war, as preliminaries to the application of the Convention. The occurrence of de factohostilities is sufficient.). For example, Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of EnemyPersonnel Captured During URGENT FURY, DAJA-IA 1983/7031 (Nov. 4, 1983), III CUMULATIVE DIGEST OFUNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3452, 3454 (concluding that de facto hostilitiesexisted on Grenada and that the Geneva Conventions do apply despite the fact that [n]o party to the hostilities inGrenada has suggested that a state of war exists; officials of Cuba and the United States publicly have announcedthey are not at war.); George Aldrich, Assistant Legal Adviser for Far Eastern Affairs, Department of State,Entitlement of American Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under theGeneva Convention of 1949 Relative to the Treatment of Prisoners of War, Jul. 13, 1966, X WHITEMANS DIGEST231-32 (7) (Although there have been no declarations of war, the present conflict in Vietnam is indisputably anarmed conflict between parties to the Geneva Conventions of 1949. In one aspect of the war, American aircraft areoperating against military targets in North Vietnam, and North Vietnamese forces have engaged these aircraft.Under these circumstances, the Convention applies in its entirety to this conflict. In this case, the state of war(under international law) is not disputed; it is merely undeclared.).67 Department of State, Telegram 348126 to American Embassy at Damascus, Dec. 8, 1983, III CUMULATIVEDIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3456, 3457 (The Third GenevaConvention accords prisoner-of-war status to members of the armed forces who are captured during armedconflict between two or more parties to the Convention. Armed conflict includes any situation in which there ishostile action between the armed forces of two parties, regardless of the duration, intensity or scope of the fightingand irrespective of whether a state of war exists between the two parties.). Cf. Bas v. Tingy, 4 U.S. 37, 40 (1800)(Washington, J., concurring) (every contention by force between two nations, in external matters, under theauthority of their respective governments, is not only war, but public war.).68 For example, United States, et al. v. Araki, et al., Majority Judgment, International Military Tribunal for the FarEast, 49,602, reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARYTRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 535 (2008) (Since the Government of Japan officiallyclassified the China War as an Incident and considered Chinese soldiers in Manchuria as bandits the Armyrefused to accord to captives taken in the fighting the status and the rights of prisoners of war. MUTO says that itwas officially decided in 1938 to continue to call the war in China an Incident and to continue for that reason torefuse to apply the rules of war to the conflict. TOJO told us the same.).

82 There are a variety of reasons why States might deny that they are at war. Forexample, government officials may deny that an armed conflict exists: (1) to avoid an escalationin fighting and to facilitate a diplomatic resolution; (2) for reasons of domestic law; (3) to avoideconomic costs (such as discouraging commerce and foreign investment); or (4) to avoidappearing to acknowledge the military effectiveness of an opposing force.

In particular, States have often been reluctant to acknowledge that operations by non-State armed groups have triggered the application of Common Article 3 of the 1949 GenevaConventions. 69 This reluctance often stems from an unwillingness to take any action that couldenhance the perceived status of rebels or give any appearance of legitimacy to their actions. 70Nonetheless, the application of the humanitarian rules does not affect the legal status of parties toa conflict. 71

In assessing whether de facto hostilities exist for the purpose of applying jus in bello restrictions,situations of internal disturbances and tensions, such as riots, isolated and sporadic acts ofviolence, and other acts of a similar nature do not amount to armed conflict. 72

69 See, e.g., George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict:Development of the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 878 (Jun. 18, 1973) (I wouldnote that Pakistan in Bangladesh and the United Kingdom in Northern Ireland have refused to acknowledge theapplicability of article 3 common to the four Geneva Conventions concerning noninternational armed conflicts.).70 See, e.g., George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict:Development of the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 879 (Jun. 18, 1973) (In thefirst place there is a general concern of governments that the acceptance of international standards for a civil warconnotes international recognition of the insurgents. This concern results from the historical development of thelaw; in customary law the international laws of war become applicable to a civil war upon international recognitionof the rebels as belligerents. This concern persists despite an explicit provision in common article 3 that itsapplication shall not affect the legal status of the parties to the conflict. Personally, I deplore the fact that thisconcern so often effectively prevents official admission that an internal armed conflict is one to which article 3applies, but we cannot ignore that political reality. Governments will predictably remain unwilling to do anythingthat could enhance the perceived status of rebels or give any appearance of legitimacy to their actions.).71 Refer to 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).72 See, e.g., CCW AMENDED art. 1 (2) (This Convention and its annexed Protocols shall not apply to situations ofinternal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of similarnature, as not being armed conflicts.); CCW AMENDED MINES PROTOCOL art. 1(2) (This Protocol shall not applyto situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other actsof a similar nature, as not being armed conflicts.); United States, Statement on Ratification of the InternationalConvention for the Suppression of the Financing of Terrorism, Jun. 26, 2002, 2185 UNTS 611, 612 ((2) Meaningof the term armed conflict. The United States of America understands that the term armed conflict in Article 2 (1)(b) of the Convention does not include internal disturbances and tensions, such as riots, isolated and sporadic acts ofviolence, and other acts of a similar nature.). Consider AP II art. 1(2) (This Protocol shall not apply to situationsof internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similarnature, as not being armed conflicts.); ROME STATUTE art. 8(2)(d) (Paragraph 2(c) applies to armed conflicts notof an international character and thus does not apply to situations of internal disturbances and tensions, such as riots,isolated and sporadic acts of violence or other acts of a similar nature.); ROME STATUTE art. 8(2)(f) (Paragraph2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internaldisturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.).

83 Any hostile action between the armed forces of different States (i.e., international armedconflict) may readily be distinguished from an internal disturbance or tension. However, it hasbeen more difficult to distinguish armed conflict not of an international character frominternal disturbances or tensions.

Armed conflict not of an international character for the purpose of applying theobligations in Common Article 3 of the 1949 Geneva Conventions was not specifically definedin those conventions. 73 There has been a range of views on what constitutes an armed conflictnot of an international character for this purpose. 74 The intensity of the conflict and theorganization of the parties are criteria that have been assessed to distinguish between non-international armed conflict and internal disturbances and tensions. 75 A variety of factors havebeen considered in assessing these criteria and in seeking to distinguish between armed conflictand internal disturbances and tensions. 76

73 GWS COMMENTARY 49 (What is meant by armed conflict not of an international character? That was theburning question which arose again and again at the Diplomatic Conference. The expression was so general, sovague, that many of the delegations feared that it might be taken to cover any act committed by force of armsanyform of anarchy, rebellion, or even plain banditry. For example, if a handful of individuals were to rise in rebellionagainst the State and attack a police station, would that suffice to bring into being an armed conflict within themeaning of the Article? In order to reply to questions of this sort, it was suggested that the term conflict should bedefined or, which would come to the same thing, that a certain number of conditions for the application of theConvention should be enumerated. The idea was finally abandonedwisely, we think.).74 See, e.g., Prosecutor v. Tadi, ICTY Appeals Chamber, IT-94-1-A, Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, 70 (Oct. 2, 1995) (On the basis of the foregoing, we find that an armedconflict exists whenever there is a resort to armed force between States or protracted armed violence betweengovernmental authorities and organized armed groups or between such groups within a State.); Juan Carlos Abellav. Argentina, Inter-American Commission on Human Rights, Organization of American States, Case 11.137,OEA/Ser.L/V/II.98, 152 (Nov. 18, 1997) (Common Article 3 is generally understood to apply to low intensity andopen armed confrontations between relatively organized armed forces or groups that take place within the territoryof a particular State.).75 See, e.g., Prosecutor v. Tadi, ICTY Trial Chamber, IT-94-1-A, Judgment, 562 (May 7, 1997) (In an armedconflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as aminimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terroristactivities, which are not subject to international humanitarian law.); Prosecutor v. Akayesu, ICTR Trial Chamber,ICTR-96-4-T, Judgment, 625 (Sept. 2, 1998) (The concept of armed conflict has already been discussed in theprevious section pertaining to Common Article 3. It suffices to recall that an armed conflict is distinguished frominternal disturbances by the level of intensity of the conflict and the degree of organization of the parties to theconflict.).76 See, e.g., GPW COMMENTARY 35-36 (collecting conditions that States negotiating the 1949 Geneva Conventionsviewed as indicative factors); Prosecutor v. Boskoski, ICTY Trial Chamber II, IT-04-82-T, Judgment, 177 (Jul. 10,2008) (Various indicative factors have been taken into account by Trial Chambers to assess the intensity of theconflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, thespread of clashes over territory and over a period of time, any increase in the number of government forces andmobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict hasattracted the attention of the United Nations Security Council, and whether any resolutions on the matter have beenpassed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from thecombat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, suchas tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; theextent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and unitsdeployed; existence and change of front lines between the parties; the occupation of territory, and towns andvillages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and

84 A helpful rule of thumb may be that where parties are, in fact, engaged in activities thatthe law of war contemplates (e.g., detention of enemy military personnel without criminalcharge, bombardment of military objectives), those activities are subject to the law of war. 77

3.4.2.3 Responding to Ordinary Crimes, Including Acts of Terrorism. States are

not required to apply law of war rules when using domestic law enforcement tools to respond toordinary crimes, including acts of terrorism. 78 For example, States may apply their domestic lawand prosecute acts of terrorism by non-State armed groups. 79 States, however, have at timesdecided to resort to military force to counter a terrorist or similar threat that is beyond thecapabilities of ordinary law enforcement to address. 80 If States intend to conduct hostilities, then

agreements, and the attempt of representatives from international organisations to broker and enforce cease fireagreements.); Prosecutor v. Dordevic, ICTY Trial Chamber II, IT-04-82-T, Judgment, 1526 (Feb. 23, 2011)(Trial Chambers have taken into account a number of factors when assessing the organization of an armed group.These fall into five broad groups. First, are the factors signalling the presence of a command structure. Secondly,are factors indicating that an armed group could carry out operations in an organised manner. Thirdly, are factorsindicating a level of logistics have been taken into account. Fourthly, are factors relevant to determining whether anarmed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3.A fifth group includes factors indicating that the armed group was able to speak with one voice.).77 Juan Carlos Abella v. Argentina, Inter-American Commission on Human Rights, Organization of AmericanStates, Case 11.137, OEA/Ser.L/V/II.98, 155 (Nov. 18, 1997) (What differentiates the events at the La Tabladabase from these situations [of internal disturbances] are the concerted nature of the hostile acts undertaken by theattackers, the direct involvement of governmental armed forces, and the nature and level of the violence attendingthe events in question. More particularly, the attackers involved carefully planned, coordinated and executed anarmed attack, i.e., a military operation, against a quintessential military objective - a military base.); GPWCOMMENTARY 23 (It makes no difference how long the conflict lasts, how much slaughter takes place, or hownumerous are the participating forces; it suffices for the armed forces of one Power to have captured adversariesfalling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by theConvention are detained is sufficient for its application. The number of persons captured in such circumstances is,of course, immaterial.).78 United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (It is the understanding ofthe United Kingdom that the term armed conflict of itself and in its context denotes a situation of a kind which isnot constituted by the commission of ordinary crimes including acts of terrorism whether concerted or inisolation.).79 Refer to 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).80 For example, William J. Clinton, Address to the Nation on Military Action Against Terrorist Sites in Afghanistanand Sudan, Aug. 20, 1998, 1998-II PUBLIC PAPERS OF THE PRESIDENTS 1460, 1461 (America has battled terrorismfor many years. Where possible, weve used law enforcement and diplomatic tools to wage the fight. But therehave been and will be times when law enforcement and diplomatic tools are simply not enough, when our verynational security is challenged, and when we must take extraordinary steps to protect the safety of our citizens. Withcompelling evidence that the bin Ladin network of terrorist groups was planning to mount further attacks againstAmericans and other freedom-loving people, I decided America must act. And so this morning, based on theunanimous recommendation of my national security team, I ordered our armed forces to take action to counter animmediate threat from the bin Ladin network. Earlier today, the United States carried out simultaneous strikesagainst terrorist facilities and infrastructure in Afghanistan.); Public Committee against Torture in Israel, et al. v.Government of Israel, et al., HCJ 769/02, Israel Supreme Court Sitting as the High Court of Justice, 21 (Dec. 11,2005) (Indeed, in todays reality, a terrorist organization is likely to have considerable military capabilities. Attimes they have military capabilities that exceed those of states. Confrontation with those dangers cannot berestricted within the state and its penal law.).

85they are also bound by the applicable jus in bello restrictions in the law of war. 81

Acts of terrorism during armed conflict are prohibited by the law of war. 82

3.5 RELATIONSHIP BETWEEN JUS IN BELLO AND JUS AD BELLUM

3.5.1 General Distinction Between Jus in Bello and Jus ad Bellum. As a general matter,jus in bello and jus ad bellum address different legal issues and should not be conflated. 83

Conflating jus in bello and jus ad bellum risks misunderstanding and misapplying theseconcepts. For example, in jus ad bellum, proportionality refers to the principle that the overallgoal of the State in resorting to war should not be outweighed by the harm that the war isexpected to produce. 84 However, proportionality in jus in bello generally refers to the standardthat the expected incidental harm to the civilian population and civilian objects should not bedisproportionate to the anticipated military advantage from an attack. 85 Therefore, although a jusad bellum proportionality analysis might consider the harm suffered by enemy military forces inthe fighting, a jus in bello proportionality analysis would not.

3.5.2 Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another.One important attribute of rules for conduct during war (jus in bello) is that, in general, theyoperate independently from rules regarding the resort to force (jus ad bellum).

3.5.2.1 Compliance With Jus in Bello Is Required Regardless of Compliance With

Jus ad Bellum. States fighting against one another must adhere to rules relating to the conduct ofhostilities (jus in bello), regardless of whether a State may be considered the aggressor orwhether the initial resort to force was lawful under jus ad bellum. For example, the 1949 GenevaConventions require States to undertake to respect and to ensure respect for the conventions inall circumstances. 86 The phrase in all circumstances has been interpreted to mean that aPartys obligations to respect and to ensure respect for the 1949 Geneva Conventions appliesregardless of whether a Party to the Convention is the aggressor or lawfully using force in self-defense. 87 Similarly, once an occupation exists in fact, the law of occupation applies, regardlessof whether the invasion was lawful under jus ad bellum. 88

81 Refer to 3.4.1 (Intent-Based Test for Applying Jus in Bello Rules).82 Refer to 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism); 17.6.5 (Prohibition onActs of Terrorism).83 Refer to 1.11 (Jus ad Bellum).84 Refer to 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality Jus ad Bellum)).85 Refer to 5.12 (Proportionality in Conducting Attacks).86 GWS art. 1 (The High Contracting Parties undertake to respect and to ensure respect for the present Conventionin all circumstances.).87 GWS COMMENTARY 27 (The words in all circumstances mean in short that the application of the Conventiondoes not depend on the character of the conflict. Whether a war is just or unjust, whether it is a war ofaggression or of resistance to aggression, the protection and care due to the wounded and sick are in no wayaffected.). Consider AP I preamble (the provisions of the Geneva Conventions of 12 August 1949 and of thisProtocol must be fully applied in all circumstances to all persons who are protected by those instruments, without

86 3.5.2.2 Compliance With Jus ad Bellum Is Required Regardless of ComplianceWith Jus in Bello. Compliance with jus ad bellum is required regardless of compliance with jusin bello. 89 For example, a State that complies with jus in bello rules may nonetheless commitaggression under jus ad bellum. 90 In addition, violations of law of war treaties applicable to non-international armed conflict generally have not been understood to provide a basis ininternational law for a non-belligerent State to intervene against the State in that conflict. 91

3.5.2.3 Rationales for the Independent Operation of Jus in Bello and Jus adBellum. The principle that jus in bello rules operate independently of jus ad bellum rules isbased on principles of sovereignty and humanity, as well as practical considerations.

If the law of war only protected parties justly resorting to force, then both sides, believingtheir opponents cause to be unjust, could consider themselves free to depart from jus in bellorules. 92 As a consequence, both sides could deny protections to their opponent, and no onewould benefit from the law of wars humanitarian protections. 93 Moreover, there might not be acompetent procedure for deciding which, if any, State has unlawfully resorted to force. 94

any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributedto the Parties to the conflict,).88 Refer to 11.2.1 (Military Occupation as a Fact).89 Consider AP I preamble (nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can beconstrued as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charterof the United Nations,).90 Refer to 1.11.3.1 (Aggression).91 Refer to 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State ArmedGroups Against Other States).92 VATTEL, THE LAW OF NATIONS 305 (3.12.190) (Moreover, since each Nation claims to have justice on its side, itwill arrogate to itself all the rights of war and claim that its enemy has none, that his hostilities are but deeds ofrobbery, acts in violation of the Law of Nations, and deserving of punishment by all Nations. The decision of therights at issue will not be advanced thereby, and the context will become more cruel, more disastrous in its effects,and more difficult of termination.).93 VATTEL, THE LAW OF NATIONS 305 (3.12.190) (The first rule of that law [of nations], with respect to the subjectunder consideration, is that regular war, as regards its effects, must be accounted just on both sides. This principle,as we have just shown, is absolutely necessary if any law or order is to be introduced into a method of redress asviolent as that of war, if any bounds are to be set to the disasters it occasions, and if a door is to be left at all timesopen for the return of peace. Moreover, any other rule would be impractical as between Nation and Nation, sincethey recognize no common judge.).94 LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 218 (61) (Unless war is to degenerate into a savagecontest of physical forces freed from all restraints of compassion, chivalry and respect for human life and dignity, itis essential that the accepted rules of war should continue to be observed. This is so in particular in view of the factthat in the present state of international judicial and political organisation there may be no means by which anauthoritative judgment can be arrived at on the question as to which State is the aggressor. (It will be noted, forinstance, that nothing short of an unanimous vote of the permanent members of the Security Council is sufficient forthe determination that a particular State has resorted to war in violation of its obligations under the Charter.)Accordingly it must be held that during the war all belligerents are bound to respect and are entitled to insist asamong themselves on the observance of rules of war as generally recognised.).

87 The principle that jus in bello rules operate independently of jus ad bellum rules is alsoinfluenced by the fact that it would be unjust to punish individual military members based on jusad bellum considerations when they have no influence on whether their State has resorted toforce lawfully under applicable international law. 95

3.5.3 Jus in Bello and Jus ad Bellum Are Sometimes Related. Although as a generalmatter parties must comport with jus in bello rules, regardless of jus ad bellum considerations,sometimes jus ad bellum issues can affect how jus in bello rules operate.

For example, the jus ad bellum principle of competent authority (also called rightauthority) acknowledges that the resort to military force is a prerogative of the State. 96Competent authority is reflected in the distinction between international armed conflict and non-international armed conflict; military operations against another State are fundamentally differentas a matter of law than military operations against a non-State armed group. 97 Competentauthority also is reflected in jus in bello rules relating to who is entitled to receive the privilegesof combatant status. Private persons captured after engaging in hostilities generally are notentitled to receive the privileges of POW status under the law of war because they lackcompetent authority. 98

As another example, the jus ad bellum issue of whether a disputed territory belongs to aState affects whether the law of belligerent occupation applies to that territory because the law ofbelligerent occupation only applies to territory that belongs to an enemy State. 99

3.5.4 U.N. Security Council Decisions and Jus in Bello. The Charter of the UnitedNations provides the modern treaty framework for jus ad bellum, and assigns importantresponsibilities to the U.N. Security Council. 100

In theory, decisions by the Security Council, acting under Chapter VII of the Charter ofthe United Nations, could create obligations that conflict with, and prevail over, obligations inlaw of war treaties or customary international law. 101 In practice, however, the U.N. SecurityCouncil frequently has affirmed the obligations of States and parties to conflicts to comply with

95 United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE NMT 1027 (Ifwe should adopt the view that by reason of the fact that the war was a criminal war of aggression every act whichwould have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that everysoldier who marched under orders into occupied territory or who fought in the homeland was a criminal and amurderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct andthe pronouncement of guilt in any case would become a mere formality.).96 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).97 Refer to 3.3.1 (International Armed Conflict and Non-International Armed Conflict).98 Refer to 4.18.3 (Private Persons Who Engage in Hostilities Lack of the Privileges of Combatant Status).99 Refer to 11.2.2.3 (Of the Hostile Army Belligerent Occupation Applies to Enemy Territory).100 Refer to 1.11.2 (U.N. Charter Framework and the U.N. Security Council).101 Refer to 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions).

88the law of war, including military forces operating pursuant to U.N. Security Councildecisions. 102

The U.N. Security Council also has certain authorities to respond to situations involvingviolations of the law of war, including establishing commissions of inquiry or authorizing the useof force. 103

Decisions of the Security Council, however, may alter the obligations of member Statesof the United Nations under the law of neutrality. 104 In addition, a U.N. Security Councilauthorization may provide additional authority for an Occupying Power to govern occupiedterritory. 105

3.6 RECIPROCITY AND LAW OF WAR RULES

Reciprocity sometimes refers to the idea that whether a law of war rule applies to aparty to a conflict depends on whether its opponent has accepted and complies with that samerule or a corresponding rule. The requirement to comply with many law of war rules (such as theobligation to treat detainees humanely) does not depend on whether the enemy complies withthat rule. Nonetheless, in the law of war, reciprocity may play a role in: (1) whether a ruleapplies; (2) enforcing a rule; or (3) how a rule operates.

3.6.1 Treaty Provisions That Provide for Reciprocity in the Scope of Application of theTreaty. Considerations of reciprocity i.e., the degree of confidence as to whether an adversarywill, in fact, abide by a certain rule may be a critical factor in the willingness of States to enterinto treaty obligations.

Similarly, various treaty provisions also reflect, to varying degrees, the principle thatwhether a rule is legally binding on a party depends on whether its opponent has accepted andapplied that same rule. For example, some law of war treaties have a general participationclause i.e., a clause specifying that the treaty only applies to an armed conflict if all the partiesto the armed conflict are also Parties to the treaty. 106 A number of treaties on the law of

102 For example, U.N. SECURITY COUNCIL RESOLUTION 2011(2011), U.N. Doc. S/RES/2011 (2011) (Oct. 12, 2011)(Expressing its serious concern with the increased high number of civilian casualties in Afghanistan, in particularwomen and children casualties, the increasingly large majority of which are caused by Taliban, Al-Qaida and otherviolent and extremist groups, reaffirming that all parties to armed conflict must take all feasible steps to ensure theprotection of affected civilians, especially women, children and displaced persons, calling for all parties to complywith their obligations under international humanitarian and human rights law and for all appropriate measures to betaken to ensure the protection of civilians, and recognizing the importance of the ongoing monitoring and reportingto the United Nations Security Council, including by ISAF, of the situation of civilians and in particular civiliancasualties, and noting in this regard the work of the ISAF Civilian Casualties Tracking Cell,).103 Refer to 18.12 (U.N. Security Council and Enforcement of the Law of War).104 Refer to 15.2.3 (The Law of Neutrality Under the Charter of the United Nations).105 Refer to 11.1.2.5 (Occupation and U.N. Security Council Resolutions).106 For example, HAGUE IV art. 2 (The provisions contained in the Regulations referred to in Article 1, as well as inthe present Convention, do not apply except between Contracting Powers, and then only if all the belligerents areparties to the Convention.); HAGUE V art. 20 (The provisions of the present Convention do not apply exceptbetween Contracting Powers, and then only if all the belligerents are parties to the Convention.); HAGUE IX art. 8

89neutrality have such a clause. 107 Other treaties specify that if both Parties and non-Parties to atreaty are in an armed conflict, then Parties to the treaty remain bound by the treaty in theirmutual relations, but not in relation to States that are not Parties to the treaty. 108 Treaties havealso provided that if a State in an armed conflict is not a Party to the treaty, but it accepts andapplies the treatys provisions, then the Parties to the treaty are bound by the treaty in relation tothat State. 109

These provisions, however, only determine the application of the treaty as matter oftreaty law and not as customary international law. For example, although not all parties to WorldWar II were Parties to Hague IV (thus failing to satisfy the requirements of Hague IVs generalparticipation clause), Hague IVs humanitarian protections were deemed applicable as a matterof customary international law. 110

3.6.2 Reciprocity in the Enforcement of the Law of War. Reciprocity may be reflected inthe enforcement of the law of war. For example, the principle of reciprocity is reflected in theconcept of reprisal, which under very limited circumstances permits a belligerent to take actionthat would otherwise be unlawful in order to remedy an enemys breach of the law. 111 However,the prohibitions on reprisal in the law of war also may be understood to reflect importantlimitations on the principle of reciprocity in enforcing the law of war. 112

(The provisions of the present Convention do not apply except between Contracting Powers, and then only if all thebelligerents are parties to the Convention.); HAGUE XIII art. 28 (The provisions of the present Convention do notapply except to the Contracting Powers, and then only if all the belligerents are parties to the Convention.); 1929GPW art. 82 (The provisions of the present Convention must be respected by the High Contracting Parties under allcircumstances. In case, in time of war, one of the belligerents is not a party to the Convention, its provisions shallnevertheless remain in force as between the belligerents who are parties thereto.); 1929 GWS art. 25 (Theprovisions of the present Convention shall be respected by the High Contracting Parties under all circumstances. If,in time of war, a belligerent is not a party to the Convention, its provisions shall nevertheless remain in force asbetween all the belligerents who are parties to the Convention.).107 Refer to 15.1.4 (Application of Treaties on Neutrality and Customary International Law).108 See, e.g., GPW art. 2 (Although one of the Powers in conflict may not be a party to the present Convention, thePowers who are parties thereto shall remain bound by it in their mutual relations.); GWS-SEA art. 2 (same); GPWart. 2 (same); GC art. 2 (same); CCW art. 7(1) (When one of the parties to a conflict is not bound by an annexedProtocol, the parties bound by this Convention and that annexed Protocol shall remain bound by them in theirmutual relations.).109 See CCW art. 7(2) (Any High Contracting Party shall be bound by this Convention and any Protocol annexedthereto which is in force for it, in any situation contemplated by Article 1, in relation to any State which is not aparty to this Convention or bound by the relevant annexed Protocol, if the latter accepts and applies this Conventionor the relevant Protocol, and so notifies the Depositary.); GWS art. 2 (Although one of the Powers in conflict maynot be a party to the present Convention, the Powers who are parties thereto shall furthermore be bound by theConvention in relation to the said Power, if the latter accepts and applies the provisions thereof.); GWS-SEA art. 2(same); GPW art. 2 (same); GC art. 2 (same).110 Refer to 19.8.2.1 (Hague IV and Customary International Law).111 Refer to 18.18 (Reprisals).112 Refer to 18.18.3 (Treaty Prohibitions on Reprisals). Consider also VCLT art. 60(5) (Paragraphs 1 to 3 do notapply to provisions relating to the protection of the human person contained in treaties of a humanitarian character,in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.).

90 Reciprocity is also reflected in the principle of tu quoque, which may limit a Statesability to deem unlawful and punish certain conduct by its adversary when that State has chosento allow its forces to engage in that same conduct. 113

Even if the application of a law of war rule does not depend on reciprocity as a matter oflaw, reciprocity may be important as a practical way of encouraging compliance by the adversarywith the law of war. 114

3.6.3 Law of War Rules May Incorporate Reciprocity. Apart from affecting whetherrules apply, reciprocity may be incorporated into the operation of particular law of war rules. Inother words, a law of war rule may operate differently depending upon an opponents behavior.

3.6.3.1 Reciprocity Golden Rule. A principle of reciprocity may be

understood to be reflected in law of war rules that reflect the golden rule. 115 For example, thetreatment of POWs has been based on the principle that POWs should be treated as the DetainingPower would want its forces held by the enemy to be treated. 116 Similarly, during the process ofreleasing and repatriating POWs, it is proper to expect that each Partys conduct with respect tothe repatriation of POWs will be reasonable and broadly commensurate with the conduct of theother. 117

3.6.3.2 Benefits-Burdens Principle in Law of War Rules. In some cases, the lawof war requires that those seeking to obtain certain benefits under the law of war also acceptcertain burdens as a condition for receiving those benefits. 118 For example, militia and volunteercorps that seek the privileges of combatant status during international armed conflict must meetcertain conditions (e.g., conducting their operations in accordance with the laws and customs ofwar) before receiving such privileges. 119 In addition, hospital ships and coastal rescue craft must

113 Refer to 18.21.2 (Tu Quoque).114 Refer to 18.2.2 (Encouraging Reciprocal Adherence by the Adversary).115 See J. Pictet, The Principles of International Humanitarian Law, 6 INTERNATIONAL REVIEW OF THE RED CROSS455, 462 (Sept. 1966) (Humanitarian law receives its impulse from moral science all of which can be summed up inone sentence, do to others what you would have done to yourself. This crystallizes the wisdom of nations and isthe secret of happiness, or at least, of the best order of society. This fundamental precept can be found, in an almostidentical form, in all the great religions, Brahmin, Buddhist, Christian, Confucian, Islamic, Jewish and Taoist. It isalso the main prop of the positivists who do not base themselves on precepts of any given religion, but on socialfacts, considered objectively, through their own reasoning alone.).116 Refer to 9.2.5 (Reciprocity in the Treatment of POWs).117 Refer to 9.37.1 (Agreements on POW Release and Repatriation).118 See, e.g., Al Warafi v. Obama, 716 F.3d 627, 631-32 (D.C. Cir. 2013) (The Geneva Conventions and theircommentary provide a roadmap for the establishment of protected status. As the district court found, Al Warafi wasserving as part of the Taliban. The Taliban has not followed the roadmap set forth in the Conventions, and it has notcarried Al Warafi to the destination. Without compliance with the requirements of the Geneva Conventions, theTalibans personnel are not entitled to the protection of the Convention.); Jack L. Goldsmith III, Assistant AttorneyGeneral, Protected Person Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 53-57 (explaining the Geneva Conventions fundamentalprinciple that warring entities must accept the Conventions burdens in order to claim their benefits.).119 Refer to 4.6 (Other Militia and Volunteer Corps).

91not be used for military purposes in order to receive their protection from capture and from beingmade the object of attack. 120 Similarly, cultural property must not be used for military purposesin order to receive special protection. 121

As another example, the rights and duties of belligerents and neutrals under the law ofneutrality may be understood as correlative or reciprocal. For example, a neutrals validassertion of its rights may depend on whether it has fulfilled its corresponding neutral duties. 122

3.6.3.3 Law of War Duties That Are Reinforced by Corresponding Duties for theEnemy. Similarly, the ability of a party to comply with a particular duty may be affected bywhether its opponent has complied with a corresponding duty. For example, the ability of aparty to discriminate in conducting attacks may be affected by whether its adversary has properlydistinguished its military objectives from the civilian population and other protected persons andobjects. 123

3.7 APPLYING RULES BY ANALOGY

In some cases, a rule developed specifically for one situation may be a useful andappropriate standard to apply in a different situation. This is sometimes called an application ofa rule by analogy.

In some cases, there is a treaty requirement to apply rules by analogy; in other cases, itmay be appropriate to apply law of war rules by analogy without a treaty-based requirement todo so.

3.7.1 Treaty Requirement to Apply Rules by Analogy. The application of law of warrules by analogy is sometimes required by a treaty provision.

For example, under the 1949 Geneva Conventions, neutral or non-belligerent States mustapply by analogy the rules relating to the treatment of the wounded and sick and of POWs wheninterning such persons under their duties of neutrality. 124 Similarly, the GC rules for penalprocedures for protected persons in occupied territory apply by analogy to proceedings againstinternees who are in the national territory of the Detaining Power. 125

3.7.2 Examples of Law of War Rules and Areas in Which Such Rules Have BeenApplied by Analogy. There are other situations in which it may be appropriate to apply law ofwar rules by analogy, even though there is no treaty requirement to do so. For example, it may

120 Refer to 5.18.8.2 (Conditions for the Granting of Special Protection No Use for Military Purposes).121 Refer to 7.12.2.2 (No Use for Military Purposes).122 Refer to 15.3.3 (Correlative or Reciprocal Nature of Rights and Duties Under the Law of Neutrality).123 Refer to 2.5.5 (Reinforcing Duties Discriminating in Conducting Attacks and Distinguishing a Partys OwnPersons and Objects).124 Refer to 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).125 Refer to 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in aBelligerents Home Territory).

92be appropriate to apply the GWS and GWS-Sea rules for the respectful treatment and handling ofenemy military dead to all persons. 126 Other examples of law of war rules and situations inwhich it may be appropriate to apply those rules by analogy include: (1) applying jus in bellorules in certain situations involving neutral or non-belligerent States; (2) applying law of warrules with a humanitarian purpose in situations outside the context of armed conflict; (3)applying occupation law provisions for the protection of the civilian population in situations notconstituting belligerent occupation; and (4) applying certain international armed conflict rules insituations of non-international armed conflict.

States. Although States developed jus in bello rules to address relations between enemies, somejus in bello rules may be applied by analogy to other situations, such as relations between abelligerent and a neutral or between co-belligerents. For example, a belligerent might takefeasible precautions to protect the civilian population of a neutral or co-belligerent State from itsmilitary operations, even though such actions might not be required by the law of war. 127 Inaddition, although the GC excludes certain persons from the definition of protected person basedon their nationality, it may be appropriate to afford such persons the standards of treatment forprotected persons. 128

3.7.2.2 Law of War Rules and Military Operations Outside the Context of ArmedConflict. Because law of war rules often reflect elementary considerations of humanity, it maybe appropriate to apply such standards to military operations occurring outside the context ofarmed conflict. 129

3.7.2.3 Occupation Law and Situations Not Constituting Belligerent Occupation.

Occupation law may also provide a useful framework for certain situations to which it may notbe strictly applicable. 130 For example, it may be appropriate for a State that liberates its allys

126 Refer to 7.7 (Treatment and Handling of Enemy Military Dead).127 For example, DEPARTMENT OF THE AIR FORCE, HEADQUARTERS PACIFIC AIR FORCES, DIRECTORATE OFOPERATIONS ANALYSIS, Project CHECO [Contemporary Historical Examination of Current Operations] Report,Rules of engagement, November 1969-September 1972 (Mar. 1, 1973), reprinted in CONGRESSIONAL RECORDS3011, S3014 (Mar. 18, 1985) (The Cambodian incursion plan was a closely held secret timed to coincide with thePresidents announcement. It was not until 27 April [1970] that 7AF was told to start definitive planning. Thus,there was no time to coordinate a new set of ROE for [neutral] Cambodia. Instead 7AF instructed its pilots to followthe normal rules for South Vietnam and to exercise extreme vigilance to avoid dropping ordnance on thenoncombatant populace.); Franklin Roosevelt, message to Winston Churchill, reprinted in WINSTON CHURCHILL,CLOSING THE RING 467-68 (1985) (I share fully with you your distress at the loss of life among the Frenchpopulation incident to our air preparations for Overlord. I share also with you a satisfaction that every possiblecare is being and will be taken to minimise civilian casualties. No possibility of alleviating adverse French opinionshould be overlooked, always provided that there is no reduction of our effectiveness against the enemy at thiscrucial time. However regrettable the attendant loss of civilian lives is, I am not prepared to impose from thisdistance any restriction on military action by the responsible commanders that in their opinion might militate againstthe success of Overlord or cause additional loss of life to our Allied forces of invasion.).128 Refer to 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Underthe GC).129 Refer to 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards).130 Refer to 11.1.3 (Application of Occupation Law to Situations Not Constituting Belligerent Occupation).

93territory from enemy control to apply by analogy rules from the law of belligerent occupation tothe administration of such territory, pending an agreement with the allied government. 131

3.7.2.4 International Armed Conflict Rules and Situations of Non-International

3.8 END OF HOSTILITIES AND THE APPLICATION OF THE LAW OF WAR

In general, law of war rules for the conduct of hostilities cease to apply when hostilitieshave ended. However, certain duties that have arisen during hostilities may continue afterhostilities have ended, and certain new duties arise at the end of hostilities.

3.8.1 General Cessation of the Application of the Law of War at the End of Hostilities.Hostilities end when opposing parties decide to end hostilities and actually do so, i.e., whenneither the intent-based nor act-based tests for when hostilities exist are met. 133 Of course, if thetest for the existence of hostilities continues to be met, then hostilities cannot be deemed to haveceased. 134 For example, hostilities may be terminated by:

an agreement to end hostilities, normally in the form of a treaty of peace;

unilateral declaration of one of the parties to end the war, provided the other party does not continue hostilities or otherwise decline to recognize the act of its enemy;

the complete subjugation of an enemy State and its allies; or

a simple cessation of hostilities.135

131 Refer to 11.1.3.2 (Liberation of Friendly Territory).132 Refer to 17.2.2.3 (Application of IAC Rules by Analogy).133 Refer to 3.4 (When Jus in Bello Rules Apply).134 David Kris, Assistant Attorney General, Response to Questions Submitted by Members Post Hearing, QuestionsSubmitted by Mr. Skelton, Reforming the Military Commissions Act of 2006 and Detainee Policy: Hearing Beforethe Committee on Armed Services, U.S. House of Representatives, 111th Congress, 1st Session, 77 (Jul. 24, 2009)(At a minimum, we believe active hostilities will continue--and detention of enemy forces will be authorized--aslong as the United States is involved in active combat operations against such forces. In reaching the determinationthat active hostilities have ceased, we would likely consider factors that have been recognized in international law asrelevant to the existence of an armed conflict, including the frequency and level of intensity of any continuingviolence generated by enemy forces; the degree to which they maintain an organizational structure and operateaccording to a plan; the enemys capacity to procure, transport and distribute arms; and the enemys intent to inflictviolence.).135 1956 FM 27-10 (Change No. 1 1976) 10 (The law of land warfare generally ceases to be applicable upon: a.The termination of a war by agreement, normally in the form of a treaty of peace; or b. The termination of a war byunilateral declaration of one of the parties, provided the other party does not continue hostilities or otherwise declineto recognize the act of its enemy; or c. The complete subjugation of an enemy State and its allies, if prior to a or b;or d. The termination of a declared war or armed conflict by simple cessation of hostilities.).

94 3.8.1.1 Agreements to End Hostilities. Parties to a conflict often have negotiatedpeace treaties to end hostilities.136 Armistice agreements, i.e., temporary cease-fires, arenegotiated to suspend hostilities.137 In addition, the U.N. Security Council may require certainsteps leading to the end of hostilities. 138

In drafting and interpreting agreements for the cessation of hostilities, it is important to

understand the rules normally applicable to the cessation of hostilities. These agreements mayrefer to provisions in the Geneva Conventions or other law of war instruments. Theseagreements may modify or supplement the rules normally applicable to the cessation ofhostilities, e.g., by specifying precisely when a legal obligation is triggered or satisfied.

3.8.1.2 End of Hostilities Absent Written Agreement. Although States often haveconcluded agreements to end hostilities, it is possible for hostilities to cease absent a written orformal agreement. For example, an armed conflict may end when a party is fully subjugated.

It may be difficult to determine when an armed conflict has ceased, as opposed, forexample, to a lull in hostilities during which opposing forces may simply be reconstitutingthemselves. 139 Hostilities generally would not be deemed to have ceased without an agreement,unless the conditions clearly indicate that they are not be resumed or there has been a lapse oftime indicating the improbability of resumption. 140

3.8.2 Duties Continuing After Hostilities. Under the law of war, certain duties that havearisen during hostilities may continue after hostilities have ended. For example, POWs areprotected by the GPW from the moment they fall into the power of the enemy until their finalrelease and repatriation. 141 Similarly, protected persons whose release, repatriation, or re-establishment may take place after the general close of military operations continue to benefit

136 For example, Agreement on Ending the War and Restoring Peace in Viet Nam signed between the Governmentof the Democratic Republic of Viet Nam and the Government of the United States, and the Protocols to thisAgreement, Jan. 27, 1973, T.I.A.S. 7542, 935 UNTS 2, 6; General Agreement for Peace in Bosnia and Herzegovina,Bosn. & Herz.-Croat.-F.R.Y, December 14, 1995, 35 I.L.M. 75 (also known as the Dayton Accords).137 Refer to 12.11.1.2 (Armistice as a Suspension of Hostilities and Not a Peace Treaty).138 Refer to 12.14 (U.N. Security Council Cease-Fires).139 Mr. Seward, Secretary of State, to Mr. Goni, Spanish Minister, Jul. 22, 1868, VII MOORES DIGEST 336 (It iscertain that a condition of war can be raised without an authoritative declaration of war, and, on the other hand, thesituation of peace may be restored by the long suspension of hostilities without a treaty of peace being made.History is full of such occurrences. What period of suspension of war is necessary to justify the presumption of therestoration of peace has never yet been settled, and must in every case be determined with reference to collateralfacts and circumstances.).140 Manley O. Hudson, The Duration of the War Between the United States and Germany, 39 HARVARD LAWREVIEW 1020, 1029-30 (1926) (If a war may be ended by a mere cessation of hostilities, the cessation of hostilitiesmust either be under such conditions that it is clear that they are not to be resumed or there must be a lapse of timeindicating the improbability of resumption.).141 Refer to 9.3.6 (Commencement and Duration of POW Status and Treatment).

95from the protection of the GC. 142 In addition, duties under occupation law may continue afterhostilities have ended. 143

3.8.3 Duties Arising at the End of Hostilities. Certain obligations are triggered by theend of hostilities. For example, the end of hostilities triggers obligations regarding the markingof minefields, demining, and clearance of unexploded ordnance. 144 In addition, POWs andprotected persons, in general, must be released and returned to the party to the conflict to whichthey belong. 145

3.9 LAW OF WAR DUTIES ALSO APPLICABLE IN PEACE

Some law of war obligations also apply in peace, i.e., even when a State is not engaged inan armed conflict. For example, States must:

disseminate information regarding the law of war; 146

train their armed forces in accordance with the law of war; 147

issue instructions and regulations for their armed forces in conformity with the law of war; 148

review the legality of new weapons; 149

take appropriate measures to prepare for the safeguarding of cultural property; 150 and

take other appropriate measures to ensure the implementation and enforcement of law of war treaties. 151

States that are at peace have obligations under the law of neutrality in relation to States

142 Refer to 10.3.4 (Commencement and Duration of Protected Person Status).143 Refer to 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory).144 Refer to 6.12.12.2 (Clearance of Minefields, Mined Areas, Mines, Booby-Traps, and Other Devices AfterHostilities); 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggeredby the Cessation of Active Hostilities).145 Refer to 9.37 (Release and Repatriation After Hostilities); 10.35 (Release, Return, Repatriation of InterneesAfter the Close of Hostilities); 11.11.8 (Disposition of Accused and Convicted Protected Persons Upon the Closeof Occupation).146 Refer to 18.6.1 (General Dissemination and Study of Treaties).147 Refer to 18.6.2 (Special Instruction or Training).148 Refer to 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).149 Refer to 6.2 (DoD Policy of Reviewing the Legality of Weapons).150 Refer to 5.18.2.1 (Peacetime Obligations to Prepare for the Safeguarding of Cultural Property).151 Refer to 18.1.2 (National Obligations to Implement and Enforce the Law of War).

This Chapter addresses different classes of persons under the law of war. The law of warhas created a framework of classes of persons to help confine the fighting between opposingmilitary forces and thereby to help protect the civilian population from the effects of war. 1

This Chapter addresses issues relating to various classes of people under the law of warincluding: (1) who is included in the various classes, such as combatant and civilian; (2) therights, duties, and liabilities of the persons in each class; and (3) how certain factual categories ofpersons, such as journalists, police officers, or child soldiers, fall within various classes and aretreated under the law of war.1 Refer to 2.5.1 (Distinction as a Framework of Legal Classes).

98 This Chapter briefly addresses specific rules that relate to the rights, duties, and liabilitiesof persons in the various classes to illustrate and provide an overview of that class. For moreinformation about specific rules, practitioners should refer to the cross-referenced sections thataddresses those specific rules. 2

4.1.1 General Notes on Terminology for Persons in the Law of War. The terms in thelaw of war that describe different classes of people are often used in confusing and contradictoryways. Although striving to use terms consistently within DoD reduces confusion, understandingthe substantive standards that apply to a person in the applicable circumstances is more importantthan using a particular label or a particular system of classification.

4.1.1.1 The Same Term Used With Different Meanings. Sometimes differentmeanings are given to the same term. For example, someone might be considered a combatantin the sense that the person may be made the object of attack, but the person would notnecessarily be a combatant in the sense that the person is privileged to engage in hostilities. 3

Similarly, one source might use the term noncombatant to mean all persons who arenot combatants, including persons placed hors de combat and civilians. 4 Alternatively, anothersource might use the term noncombatant to refer specifically to persons who are members ofthe armed forces, but who are not combatants. 5 In the past, some commentators have usednoncombatants of the armed forces to refer to all members of the armed forces serving incombat service support or sustainment roles. 6 In contemporary parlance, however, the termnoncombatant should generally be used to mean military medical and religious personnel, 7 butalso can include those combatants placed hors de combat. 8

2 Refer to 1.2.3 (Use of Cross-References in This Manual).3 Refer to 4.3.2 (Combatant Notes on Terminology).4 See, e.g., L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 88 (2nd ed., 2000) (Nationals of theadverse party are normally classified as combatants and non-combatants, with the latter including some members ofthe armed forces chaplains, medical personnel and those hors de combat.); LIEBER CODE art. 19 (Commanders,whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, andespecially the women and children, may be removed before the bombardment commences.).5 See, e.g., HAGUE IV REG. art. 3 (The armed forces of the belligerent parties may consist of combatants andnoncombatants. In the case of capture by the enemy, both have the right to be treated as prisoners of war.).6 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 56 (The distinction between combatants andnoncombatants within the armed forces must be taken to correspond to the distinction between fighting troops andtroops in service units. The fighting troops of an army carry out the actual military operations, whereas the servicetroops minister to the needs of the former and supply their various requirements. The Hague Regulations do notdefine the elements in the two classes, but combatants would include infantry, cavalry, armored troops, and the like,whose function it is to engage with the enemy; as well as artillery, engineers, signals, and others, whose duty it is tosupport such action. Noncombatants would include personnel of the various services comprising (inter alia)medical, chaplains, veterinary, graves, pay, postal, labor, supply, transport, ordnance, provost, legal, and military-government units.); GWS COMMENTARY 223 footnote 4 (In correct terminology, however, armed forces includecombatants (i.e. soldiers bearing arms) and non-combatants (who comprise not only medical personnel but alsovarious other army services not called upon to carry arms).).7 Refer to 4.9 (Military Medical and Religious Personnel).8 Refer to 5.10 (Persons Placed Hors de Combat).

99 4.1.1.2 Different Terms Used to Describe the Same Concept. Different legalsources may use different terms to refer to the same class of people under the law of war. Forexample, one source might use belligerent, whereas another source might use combatant torefer to the same class of people under the law of war. 9

4.1.2 Classes and Categories Are Only the Starting Point for Legal Analysis. Whenanalyzing a persons rights, duties, and liabilities under the law of war, it is important to analyzethe specific question in light of the applicable facts. Determining what class a person falls into,such as combatant, civilian, or unprivileged belligerent, may be only the first step in alegal analysis. For example, whether a person may be the object of attack, may be detained, isentitled to POW status, or may be punished for their actions are all different questions. Althoughthese questions are often related to one another and associated with the general classes ofcombatant and civilian, each question requires its own specific analysis. This specificanalysis should be done in each case, applying the legal rules to the facts, rather than deriving ananswer based on a conclusory labeling of a person as, for example, an enemy combatant. 10Indeed, some persons might, for some purposes, be treated like combatants, but for otherpurposes be treated like civilians. 11

4.2 THE ARMED FORCES AND THE CIVILIAN POPULATION

The law of war has recognized that the population of an enemy State is generally dividedinto two classes: the armed forces and the civilian population, also sometimes called,respectively, combatants and civilians. This division results from the principle ofdistinction. 12

4.2.1 Development of the Distinction Between the Armed Forces and the CivilianPopulation. A citizen or national of a State that is a party to a conflict, as one of the constituentsof a State that is engaged in hostilities, may be subjected to the hardships of war by an enemyState. 13 However, because the ordinary members of the civilian population make no resistance,it has long been recognized that there is no right to make them the object of attack. 14 Thus,9 Refer to 4.3.2 (Combatant Notes on Terminology).10 Refer to 4.18.1 (Private Persons Who Engage in Hostilities Notes on Terminology).11 Refer to 4.2.3 (Mixed Cases).12 Refer to 2.5 (Distinction).13 See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 772-73 (1950) (The alien enemy is bound by an allegiance whichcommits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to befaithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable himfrom commission of hostile acts imputed as his intention because they are a duty to his sovereign.); LIEBER CODEart. 21 (The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state ornation, and as such is subjected to the hardships of the war.).14 See LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 204 (57) (Those private subjects of the belligerentswho do not directly or indirectly belong to the armed forces do not take part in it; they do not attack and defend; andno attack ought therefore to be made upon them.); G. SHERSTON BAKER, II HALLECKS INTERNATIONAL LAW 15-16(20.3) (1908) (Feeble old men, women, and children, and sick persons, come under the general description ofenemies, and we have certain rights over them as members of the community with which we are at war; but, as theyare enemies who make no resistance, we have no right to maltreat their persons, or to use any violence toward them,much less to take their lives.); LIEBER CODE arts. 22, 23, 25 (explaining that protection of the unarmed citizen,

100States have departed from ancient and medieval practices of war between entire peoples, andinstead, as much as possible, have treated war as a contention between the professional militaryforces of warring States. 15 This separation of the armed forces and the civilian population hasgreatly mitigated the evils of war. 16

4.2.2 No Person May Claim the Distinct Rights Afforded to Both Combatants andCivilians at the Same Time. The classes of combatants and civilians have distinct rights, duties,and liabilities; no person may claim the distinct rights afforded both classes at the same time. 17For example, a person may not claim the combatants right to attack enemy forces while alsoclaiming the civilians right not to be made the object of attack. 18

4.2.3 Mixed Cases. Certain classes of persons do not fit neatly within the dichotomy ofthe armed forces and the civilian population, i.e., combatants and civilians. Each of these

the inoffensive individual, or the inoffensive citizen of the hostile country is the rule) (emphasis added);VATTEL, THE LAW OF NATIONS 282 (3.8.145) (Women, children, feeble old men, and the sick these are enemieswho make no resistance, and consequently the belligerent has no right to maltreat or otherwise offer violence tothem, much less to put them to death.).15 See, e.g., LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 204 (57) (During antiquity, and the greater partof the Middle Ages, war was a contention between the whole populations of the belligerent States. In time of warevery subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult orinfant, could be killed or enslaved by the other belligerent at will. But gradually a milder and more discriminatingpractice grew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly orindirectly belong to their armed forces, and, with certain exceptions, their private property, are protected byInternational Law.); LIEBER CODE art. 22 (Nevertheless, as civilization has advanced during the last centuries, sohas likewise steadily advanced, especially in war on land, the distinction between the private individual belonging toa hostile country and the hostile country itself, with its men in arms. The principle has been more and moreacknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies ofwar will admit.).16 See SPAIGHT, WAR RIGHTS ON LAND 37 (The separation of armies and peaceful inhabitants into two distinctclasses is perhaps the greatest triumph of International Law. Its effect in mitigating the evils of war has beenincalculable.); G. SHERSTON BAKER, II HALLECKS INTERNATIONAL LAW 20-22 (20.3) (1908) (But afterwards inItaly, and more particularly during the lawless confusion of the feudal ages, hostilities were carried on by all classesof persons, and everyone capable of being a soldier was regarded as such, and all the rights of war attached to hisperson. But as wars are now carried on by regular troops, or, at least, by forces regularly organised, the peasants,merchants, manufacturers, agriculturists, and, generally, all public and private persons, who are engaged in theordinary pursuits of life, and take no part in military operations, have nothing to fear from the sword of the enemy.So long as they refrain from all hostilities, pay the military contributions which may be imposed on them and quietlysubmit to the authority of the belligerent who may happen to be in the military possession of their country, they areallowed to continue in the enjoyment of their property, and in the pursuit of their ordinary avocations. This systemhas greatly mitigated the evils of war, .).17 See, e.g., 1956 FM 27-10 (Change No. 1 1976) 60 (dividing into prisoners of war and the civilianpopulation, and noting that [p]ersons in each of the foregoing categories have distinct rights, duties, anddisabilities.); 1940 RULES OF LAND WARFARE 8 (The enemy population is divided in war into two generalclasses, known as, the armed forces and the peaceful population. Both classes have distinct rights, duties, anddisabilities, and no person can belong to both classes at one and the same time.); 1934 RULES OF LAND WARFARE8 (same); 1914 RULES OF LAND WARFARE 29 (same).18 See 1958 UK MANUAL 86 (It is one of the purposes of the law of war to ensure that an individual who belongsto one class or the other shall not be permitted to enjoy the privileges of both. Thus he must not be allowed to kill orwound members of the army of the opposing belligerent and subsequently, if captured, to claim that he is a peacefulcitizen.).

101particular classes has some attributes of combatant status and some attributes of civilian status; incertain respects persons in these classes are treated like combatants, but in other respects they aretreated like civilians. These classes may be classified into three groups: (1) certain personnelengaged in humanitarian duties; (2) certain authorized supporters of the armed forces; and (3)unprivileged belligerents.

In addition to distinguishing between the armed forces and the civilian population, thelaw of war also distinguishes between privileged and unprivileged, or lawful andunlawful combatants. As the Supreme Court has explained:

Lawful combatants are subject to capture and detention as prisoners of war by

opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. 29

Unlawful combatants or unprivileged belligerents are persons who, by engaging in

hostilities, have incurred one or more of the corresponding liabilities of combatant status (e.g.,being made the object of attack and subject to detention), but who are not entitled to any of thedistinct privileges of combatant status (e.g., combatant immunity and POW status). 30

4.3.1 Unprivileged Belligerents as a Category in Treaty Law. States have, in a few

cases, explicitly recognized in treaties certain categories of unprivileged belligerents, such asspies and saboteurs. 31 However, States have generally refrained from explicitly recognizingunprivileged belligerents as a class in treaties in the way that classes of lawful combatants havebeen defined. 32

Law of war treaties have been understood to reflect restrictions on the conduct ofhostilities by States, 33 and States have been reluctant to conclude treaties to afford unprivilegedenemy belligerents the distinct privileges of POW status or the full protections affordedcivilians. 34

28 Refer to 4.18 (Private Persons Who Engage in Hostilities).29 Ex parte Quirin, 317 U.S. 1, 31 (1942). See also Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (Thecapture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, byuniversal agreement and practice, are important incident[s] of war.) (quoting Ex parte Quirin at 28, 30).30 Refer to 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).31 See, e.g., HAGUE IV REG. arts. 29-31 (defining the category of spy and regulating the treatment of captured spies);GC art. 5 (regulating the treatment of certain protected persons detained as a spy or saboteur, or as a person underdefinite suspicion of activity hostile to the security of the Occupying Power). See also GC COMMENTARY 5 (Itmay, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs orirregular combatants. Those who take part in the struggle while not belonging to the armed forces are actingdeliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. Itmight therefore have been simpler to exclude them from the benefits of the Convention, if such a course had beenpossible, but the terms espionage, sabotage, terrorism, banditry and intelligence with the enemy, have so often beenused lightly, and applied to such trivial offences, that it was not advisable to leave the accused at the mercy of thosedetaining them.).32 See, e.g., GWS art. 13; GWS-SEA art. 13; GPW art. 4.33 Refer to 1.3.3.1 (Law of War as Prohibitive Law).34 See, e.g., IIA FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 433 (ICRC representativeexplaining that [t]he present Conference was engaged in framing a Convention to protect members of armed forcesand similar categories of persons, such as members of organized resistance movements, and another convention to

103 Although seldom explicitly recognized as a class in law of war treaties, the category ofunprivileged belligerent may be understood as an implicit consequence of creating the classes oflawful combatants and peaceful civilians. 35 The concept of unprivileged belligerency, i.e., theset of legal liabilities associated with unprivileged belligerents, may be understood in oppositionto the rights, duties, and liabilities of lawful combatants and peaceful civilians. Unprivilegedbelligerents include lawful combatants who have forfeited the privileges of combatant status byengaging in spying or sabotage, and private persons who have forfeited one or more of theprotections of civilian status by engaging in hostilities. 36

4.3.2 Combatant Notes on Terminology.

4.3.2.1 Combatant and Belligerent. Combatant and belligerent have

sometimes been used interchangeably and, in this usage, they generally describe individuals whoare not civilians.

Belligerent, however, has also sometimes used to describe States and to contrast suchStates with neutral or non-belligerent States. 37 Belligerent has also been used to contrastarmed groups that have belligerent rights with armed groups that lack such rights, such asinsurgents. 38

4.3.2.2 Lawful, Privileged, and Qualified. The distinction between

lawful and unlawful combatants has sometimes been called a distinction between

protect civilians. Although the two Conventions might appear to cover all the categories concerned, irregularbelligerents were not actually protected.); id. at 612 (Swiss representative taking the view that [i]n regard to thelegal status of those who violated the laws of war, the [Civilians] Convention could not of course cover criminals orsaboteurs.); id. at 621 (UK representative rejecting a draft which would mean that persons who were not entitledto protection under the Prisoners of War Convention would receive exactly the same protection by virtue of theCivilians Convention, so that all persons participating in hostilities would be protected, whether they conformed tothe laws of war or not. The whole conception of the Civilians Convention was the protection of civilian victimsof war and not the protection of illegitimate bearers of arms, who could not expect full protection under rules of warto which they did not conform. Such persons should no doubt be accorded certain standards of treatment, but shouldnot be entitled to all the benefits of the Convention.).35 See, e.g., 10 U.S.C. 948a (The term unprivileged enemy belligerent means an individual (other than aprivileged belligerent) who engages in certain conduct); Ex parte Quirin, 317 U.S. 1, 35 (1942) (Our Government,by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class ofunlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear fixed anddistinctive emblems.).36 Refer to 4.3.4 (Types of Unprivileged Belligerents).37 Refer to 15.1.2 (Classification of States as Belligerent, Neutral, or Non-Belligerent).38 See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), IIICUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3448 (The concept ofinsurgency was traditionally used to describe a conflict that did not meet the rigid standards of customaryinternational law for recognition of belligerency.); Anthony Eden, Secretary of State for Foreign Affairs, UnitedKingdom, Oral Answers to Questions, Dec. 8, 1937, HANSARD 330 HOUSE OF COMMONS DEBATES 357 (HisMajestys Ambassador at Hendaye has been instructed to inform the Salamanca authorities that as belligerent rightshave not been recognised to either party in the Spanish conflict. His Majestys Government are not prepared toadmit their right to declare any such blockade.). Refer to 3.3.3 (State Recognition of Armed Groups asBelligerents).

104privileged and unprivileged belligerents, i.e., distinguishing between persons who areentitled to the privileges of combatant or belligerent status, and those who are not. 39 Thisdistinction has also sometimes been called a distinction between qualified and unqualifiedbelligerents, i.e., distinguishing between persons who have met the qualifications to receive theprivileges of combatant status and those who have not. 40

4.3.2.3 Combatant Used Without Modification. Combatant and

belligerent, when used without modification (such as lawful or unlawful, or privilegedor unprivileged), have often referred implicitly to lawful or privileged combatants. 41However, in some cases, combatant or belligerent has been used to refer to all persons whoengage in hostilities, without taking a position as to whether they are entitled to receive theprivileges of combatant status.

4.3.2.4 General Usage of Combatant in This Manual. This manual generally

uses combatant to refer implicitly to lawful or privileged combatants.

This manual generally uses the term unprivileged belligerent (instead of, e.g.,unlawful combatant, unlawful belligerent, unprivileged combatant, etc.) to refer to personswho are subject to one or more of the liabilities of combatant status, but are not entitled toreceive its distinct privileges.

4.3.3 Types of Lawful Combatants. Three classes of persons qualify as lawful or

privileged combatants:

members of the armed forces of a State that is a party to a conflict, aside from certain categories of medical and religious personnel; 42

under certain conditions, members of militia or volunteer corps that are not part of the armed forces of a State, but belong to a State; 43 and

inhabitants of an area who participate in a kind of popular uprising to defend against

foreign invaders, known as a leve en masse. 44

39 See, e.g., 1958 UK MANUAL 96 (Should regular combatants fail to comply with these four conditions, they mayin certain cases become unprivileged belligerents. This would mean that they would not be entitled to the status ofprisoners of war upon their capture.); Richard R. Baxter, So-Called Unprivileged Belligerency: Spies, Guerillas,and Saboteurs, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 323 (1951); LIEBER CODE art. 49 (describing whois exposed to the inconveniences as well as entitled to the privileges of a prisoner of war).40 See, e.g., JAMES M. SPAIGHT, AIRCRAFT IN WAR 51 (1914) (referring to that outlaw of war lawthe unqualifiedbelligerent); HAGUE IV REG. arts. 1-3 (describing who meets [t]he Qualifications of Belligerents).41 See, e.g., AP I art. 43(2) (describing combatants as those who have the right to participate directly inhostilities.).42 Refer to 4.5 (Armed Forces of a State).43 Refer to 4.6 (Other Militia and Volunteer Corps).44 Refer to 4.7 (Leve en Masse).

105 4.3.4 Types of Unprivileged Belligerents. Unprivileged belligerents may generally beclassified into two categories that may be distinguished from one another by the presence orabsence of State authorization:

persons who have initially qualified as combatants (i.e., by falling into one of the three categories mentioned above), but who have acted so as to forfeit the privileges of combatant status by engaging in spying or sabotage; 45 and

persons who never meet the qualifications to be entitled to the privileges of combatant status, but who have, by engaging in hostilities, incurred the corresponding liabilities of combatant status (i.e., forfeited one or more of the protections of civilian status). 46

These two categories of unprivileged belligerents generally receive the same treatment. 47However, the distinction that the first category has State authorization, while the second categorydoes not, may be important and create different legal results. For example, the combatant whospies regains the entitlement to the privileges of combatant status upon returning to friendlylines, but the private person who spies cannot regain a status to which the person was neverentitled. 48 Similarly, acts of unprivileged belligerency on the high seas may constitute piracy, acrime under international law, although similar acts by persons acting under State authority, evenif they were not members of the armed forces, could not constitute piracy. 49

4.4 RIGHTS, DUTIES, AND LIABILITIES OF COMBATANTS

Combatants have a special legal status, i.e., certain rights, duties, and liabilities. Asdiscussed below, combatants may engage in hostilities and are liable to being made the object ofattack by enemy combatants. Combatants must conduct their operations in accordance with thelaw of war. They have the right to POW status if they fall into the power of the enemy duringinternational armed conflict. Combatants have legal immunity from domestic law for acts doneunder military authority and in accordance with the law of war.

4.4.1 Combatants Conduct of Hostilities. In general, combatants may engage in

hostilities and may be made the object of attack by enemy combatants. 50 However, combatantsplaced hors de combat must not be made the object of attack. 51

Combatants must conduct their operations in accordance with the law of war. Forexample, combatants must take certain measures to distinguish themselves from the civilianpopulation. 52 Combatants also may not kill or wound the enemy by resort to perfidy. 5345 Refer to 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).46 Refer to 4.18 (Private Persons Who Engage in Hostilities).47 Refer to 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).48 Refer to 4.17.5 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status).49 Refer to 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).50 Refer to 5.8 (Combatants).51 Refer to 5.10 (Persons Placed Hors de Combat).52 Refer to 5.5.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).

106Combatants must only direct their attacks against military objectives. 54 Combatants must takefeasible precautions in conducting attacks to reduce the risk of harm to the civilian population. 55Chapter V addresses in detail the rules that combatants must follow in the conduct of hostilities.

4.4.2 Combatants POW Status During Detention. Combatants are liable to capture anddetention by enemy combatants, but are entitled to POW status when they fall into the power ofthe enemy during international armed conflict. POWs, like all detained individuals, must betreated humanely. 56 In addition, POWs are afforded a variety of privileges in detention inaccordance with the GPW, such as camp canteens, advances of pay, and permission to wear theirbadges of rank, nationality, or decorations. 57 POWs also have duties in detention, such asidentifying themselves to their captors, 58 and they are subject to the laws, regulations, and ordersof the Detaining Power. 59 Chapter IX addresses in detail the treatment of POWs and their duties.

In general, POWs shall be released and repatriated without delay after the cessation ofactive hostilities. 60 However, seriously wounded, injured, or sick POWs should be returnedbefore the end of hostilities. 61 In addition, after the hostilities have ended, certain POWs may beheld in connection with criminal proceedings. 62

In general, combatants retain their right to POW status and treatment, even if they arealleged to have committed crimes before capture. 63 For example, POWs are entitled to a varietyof rights in relation to judicial proceedings against them. 64 In addition, POWs servingdisciplinary punishment shall continue to receive the benefits of the GPW, except insofar asthese benefits are necessarily rendered inapplicable by the mere fact that the POW is confined. 65

Combatants captured while engaged in spying or sabotage forfeit their entitlement to

POW status. 66 In cases of doubt as to whether a detainee is entitled to POW status, that person

53 Refer to 5.22 (Treachery or Perfidy Used to Kill or Wound).54 Refer to 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks).55 Refer to 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons andObjects).56 Refer to 9.5 (Humane Treatment and Basic Protections for POWs).57 Refer to 9.17 (Canteens for POWs); 9.18.3 (Advance of Pay); 9.22.4 (Rank and Age of POWs).58 Refer to 9.8 (Interrogation of POWs).59 Refer to 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of theDetaining Power).60 Refer to 9.37 (Release and Repatriation After Hostilities).61 Refer to 9.36.1 (Direct Repatriation of Seriously Wounded, Injured, or Sick POWs).62 Refer to 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense).63 Refer to 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).64 Refer to 9.28 (Judicial Proceedings and Punishment).65 Refer to 9.27.6.2 (Retention of the Benefits of the GPW While Undergoing Disciplinary Punishment).66 Refer to 4.17.5 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status).

107should be afforded the protections of POW status until their status has been determined by acompetent tribunal. 67

4.4.3 Combatants - Legal Immunity From a Foreign States Domestic Law. Internationallaw affords combatants a special legal immunity from the domestic law of the enemy State fortheir actions done in accordance with the law of war. 68 This legal immunity is sometimes calledthe combatants privilege or combatant immunity. This means that a combatants killing,wounding, or other warlike acts are not individual crimes or offenses, 69 if they are done undermilitary authority and are not prohibited by the law of war. 70 Similarly, a combatants warlikeacts done under military authority and in accordance with the law of war also do not create civilliability. 71

Combatants lack legal immunity from an enemy States domestic law for acts that areprohibited by the law of war. 72 Also, combatants lack legal immunity from an enemy Statesdomestic law while engaging in spying or sabotage. 73 Combatants, however, must receive a fairand regular trial before any punishment. 74

67 Refer to 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined).68 This legal immunity would also be applicable with respect to neutral States to the extent they sought to exercisejurisdiction over the conduct of belligerents. Traditionally, however, neutral States generally did not assertjurisdiction over conduct committed between belligerents. Refer to 18.21.1 (Jurisdiction Over War Crimes).69 LIEBER CODE art. 57. See also Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting)(explaining that legitimate acts of warfare, however murderous, do not justify criminal conviction and that it isno crime to be a soldier.); WINTHROP, MILITARY LAW & PRECEDENTS 778 (The State is represented in activewar by its contending army, and the laws of war justify the killing or disabling of members of the one army by thoseof the other in battle or hostile operations.); Arce v. State, 202 S.W. 951 (Texas Court of Criminal Appeals 1918)(reversing homicide conviction of Mexican soldiers prosecuted in connection with hostilities between the UnitedStates and Mexico). Consider AP I art. 43(2) (combatants have the right to participate directly in hostilities.).70 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (actsdone in time of war under the military authority of an enemy cannot involve criminal liability on the part of officersor soldiers if the acts are not prohibited by the conventional or customary rules of war.); Daniel Webster,Department of State, Letter to John G. Crittenden, Attorney General, Mar. 15, 1841, reprinted in THE DIPLOMATICAND OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 134-35 (1848) (explaining [t]hat anindividual forming part of a public force, and acting under the authority of his Government, is not to be heldanswerable, as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilizednations).71 See Freeland v. Williams, 131 U.S. 405, 416 (1889) (Ever since the case of Dow v. Johnson, 100 U.S. 158, thedoctrine has been settled in the courts that in our late civil war, each party was entitled to the benefit of belligerentrights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare,under and by military authority of either party, no civil liability attached to the officers or soldiers who acted undersuch authority.); Dow v. Johnson, 100 U.S. 158, 165 (1879) (There would be something singularly absurd inpermitting an officer or soldier of an invading army to be tried by his enemy, whose country it had invaded. Thesame reasons for his exemption from criminal prosecution apply to civil proceedings.).72 See United States, et al. v. Gring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT223 (He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the stateif the state in authorizing action moves outside its competence under international law.).73 Refer to 4.17.3 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status).74 Refer to 9.28.4 (Rights of Defense and Trial Procedure).

108 4.4.3.1 Combatants - Legal Immunity and POW Status. The combatantsprivilege from liability under domestic law has been associated with POW status. 75 In thatvein, U.S. courts have inferred from provisions of the GPW the combatants privilege againstbeing prosecuted by capturing States. 76 However, the legal immunity that combatants may beafforded is not the same as POW status. For example, a combatants conduct may be protectedby legal immunities even when that person is not in the power of the enemy and thus is not aPOW. As another example of how POW status and legal immunity may differ, the GPWgenerally affords the same treatment to all classes of POWs identified in Article 4. However, notall the categories of POWs identified in Article 4 of the GPW, such as persons authorized toaccompany the armed forces, receive the general license to commit belligerent acts that isafforded members of the armed forces. 77

4.4.3.2 Combatants Legal Immunity and Sovereignty. In addition to being

associated with humanitarian principles governing the treatment of POWs, the combatantsprivilege has also been viewed as an application of the immunity that international law affordsStates from each others jurisdiction. 78 In this view, the act of the soldier who conforms to thelaw of war and does not engage in private acts of warfare is an act of state depriving the enemy

75 See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), IIICUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3451 (It is well-accepted that individuals who enjoy the status of prisoner of war are generally immune from prosecution forlegitimate acts of war in international armed conflicts.); ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR:A STUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 305 (1976) (there hastraditionally been a close relationship between the concept of prisoners of war and that of lawful combatants.);LIEBER CODE art. 56 (A prisoner of war is subject to no punishment for being a public enemy, nor is any revengewreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food,by mutilation, death, or any other barbarity.).76 See United States v. Lindh, 212 F. Supp. 2d 541, 553 (E.D. Va. 2002) (memorandum opinion) (interpretingarticles 87 and 99 of GPW to make clear that a belligerent in a war cannot prosecute the soldiers of its foes for thesoldiers lawful acts of war); United States v. Khadr, 717 F.Supp.2d. 1215, 1222 footnote 7 (USCMCR 2007)(same); United States v. Pineda, 2006 U.S. Dist. LEXIS 17509, 6-8 (D.D.C. Mar. 23, 2006) (D.D.C. 2006) (same).See also United States v. Noriega, 746 F. Supp. 1506, 1529 (S.D. Fla. 1990) (As is evident from its text andconstrued as a whole, the essential purpose of the Geneva Convention Relative to the Treatment of Prisoners of Waris to protect prisoners of war from prosecution for conduct which is customary in armed conflict.).77 ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL HUMANITARIAN LAWAPPLICABLE IN ARMED CONFLICTS 305 (1976) (The relationship between the concepts of lawful combatants andprisoners of war has been said to arise from the fact that lawful combatants are always entitled to prisoner-of-warstatus, while the reverse is not necessarily true, as there are categories of persons entitled to the status of prisoners ofwar who as civilians enjoy no general license to commit belligerent acts.).78 Cf. United States v. Thierichens, 243 F. 419, 420 (E.D. Pa. 1917) (The well-settled rule that, under the comityexisting between nations, the public armed ship of a friendly nation, acting under the immediate and direct commandof the sovereign power, is not to be interfered with by the courts of a foreign state, is based upon the principle that, ifthe courts did attempt to assume jurisdiction over such vessel, it would require the sovereign of the nation to whichthe vessel belongs to be impleaded in the court from which the process issued, and, by common consent of nations,such situations could not arise without interference with the power and dignity of the foreign sovereign. Thereforethe courts will not assume jurisdiction over such vessel or its officers, while acting as such, but leave controversiesarising out of the acts of the vessel, and its officers, while acting in their official character, for settlement throughdiplomatic channels.).

109state of jurisdiction. 79 This view of the combatants privilege requires that combatants actunder the commission of a belligerent State. 80 This view also reflects the principle that onlyStates may authorize the resort to force. 81

4.4.4 Nationality and Combatant Status.

4.4.4.1 Nationals of Neutral States in Enemy Forces. Members of enemy armed

forces may include nationals of neutral or non-belligerent States. For example, the U.S. armedforces include many foreign nationals, and the United States could be engaged in hostilities whenthose foreign nationals home States are not. Nationals of a neutral or non-belligerent State whoare members of the armed forces of a belligerent State should be treated like other members ofthat States armed forces. 82 For example, such nationals are entitled to POW status if they fallinto the power of the enemy during international armed conflict. 83

4.4.4.2 Nationals of a State Who Join Enemy Forces. The special privileges thatinternational law affords combatants generally do not apply between a national and his or herState of nationality. 84 For example, provisions of the GPW assume that POWs are not nationalsof the Detaining Power. 85 Thus, international law does not prevent a State from punishing its

79 Richard Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 28 BRITISH YEARBOOK OF INTERNATIONAL LAW 382, 385 (1951). See also Hans Kelsen, Collective and Individual Responsibility inInternational Law with Particular Regard to the Punishment of War Criminals, 31 CALIFORNIA LAW REVIEW 530,549 (1943) (That a State violates international law if it punishes as a criminal, according to its national law, amember of the armed forces of the enemy for an act of legitimate warfare, can be explained only by the fact that theState by so doing makes an individual responsible for an act of another State. According to international law, the actin question must be imputed to the enemy State and not to the individual who in the service of his State hasperformed the act. It cannot be considered as a crime of the individual because it must not be considered as his actat all.); LIEBER CODE art. 41 (All municipal law of the ground on which the armies stand, or of the countries towhich they belong, is silent and of no effect between armies in the field.).80 See Wharton, Com. Am. Law, 221, VII MOORES DIGEST 175 (It is necessary in order to place the members ofan army under the protection of the law of nations, that it should be commissioned by a state. Hence, all civilizednations have agreed in the position that war to be a defence to an indictment for homicide or other wrong, must beconducted by a belligerent state, and that it can not avail voluntary combatants not acting under the commission of abelligerent.).81 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).82 Refer to 15.6.2.1 (No More Severe Treatment Than Nationals of an Opposing Belligerent State).83 LEVIE, POWS 74-75 (Normally, the nationality of the individual falling within one of the categories enumeratedin Article 4 is that of the belligerent Power for which he is fighting. However, he may have the nationality of aneutral, or of an ally of the belligerent in whose armed forces he is serving at the time that he falls into the power ofthe enemy--or even of the adverse Party, or one of its allies. Does this affect his entitlement to prisoner-of-warstatus? Apparently there is no dispute with respect to the entitlement to prisoner-of-war status of an individual whois a national of a neutral State or of a State which is an ally of the belligerent in whose armed forces he is serving.).84 Compare 10.3.3.1 (A States Own Nationals).85 See, e.g., GPW art. 87 (When fixing the penalty, the courts or authorities of the Detaining Power shall take intoconsideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, isnot bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of hisown will.). Refer to 9.26.6 (Prohibited Penalties); 9.28.6 (Death Sentences).

110nationals whom it may capture among the ranks of enemy forces. 86 This rule is significant innon-international armed conflicts in which a State is fighting a rebel group composed of its owncitizens. 87

Although, as a matter of international law, nationals may not assert the privileges ofcombatant status against their own State, they may be subject to the liabilities of combatantstatus in relation to their own State under that States domestic law. For example, under U.S.law, U.S. nationals who join enemy forces have been subject to the liabilities of combatantstatus, such as potentially being made the object of attack or detained. 88

4.4.4.3 Nationals of Allied or Co-Belligerent States. Nationals of an allied or co-

belligerent State who are serving with enemy forces are in a position that is similar to theposition of nationals of a State who are serving with enemy forces. If the nationals of an alliedor co-belligerent State who are serving with enemy forces are captured by a State, they may betransferred to their State of nationality (i.e., the co-belligerent or allied State), which is notrequired to afford them POW status. 89 However, U.S. practice as the Detaining Power in thissituation has been to afford POW treatment to such individuals if they claim such protection. 90

86 See Public Prosecutor v. Oie Hee Koi and Associated Appeals (UK Privy Council, Dec. 4 1967), LEVIE,DOCUMENTS ON POWS 737, 741 (quoting LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW) (The privilegesof members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to theforces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals.The same applies to traitorous subjects of a belligerent who, without having been members of his armed forces, fightin the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitorsmay be seized and punished. This edition was published in 1951 after Aug. 12, 1949, the date of the GenevaConventions, and in their lordships opinion correctly states the relevant law.).87 Refer to 17.12 (Use of Captured or Surrendered Enemy Personnel in NIAC).88 See, e.g., Hamdi v. Rumsfeld 542 U.S. 507, 519 (2004) (plurality) (There is no bar to this Nations holding oneof its own citizens as an enemy combatant.); Ex parte Quirin, 317 U.S. 1, 37 (1942) (Citizenship in the UnitedStates of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawfulbecause in violation of the law of war.); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946) (rejecting the argument ofpetitioner, an Italian army draftee, that he could not be subject to the liabilities of combatant status and detainedbecause he was a U.S. citizen).89 For example, DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By TheUnited States Army, 1776-1945, 198 (Jun. 24, 1955) (During the [Second World] war many soldiers of a state oforigin other than Germany were found in German uniform among German prisoners of war. Therefore when Alliedforces captured these prisoners they segregated them by nationalities. The individual PW was then interrogated byrepresentatives of his countrys government in exile. If acceptable to that government and if he was willing, the PWwas sent to Great Britain for service in an army unit of his national government. If the PW was rejected, he wastreated in all respects as a German prisoner of war.).90 For example, Announcement Concerning Soviet Allegations on Allied Prisoners of War, May 3, 1945, 12DEPARTMENT OF STATE BULLETIN 864 (May 6, 1945) (In as much as the American Government has alwaysinsisted that all wearers of the American uniform, whether American citizens or not, are, as American soldiers,entitled to full protection of the [1929] Geneva convention and has so informed the enemy, these German prisonersof war of apparent Soviet nationality claiming such protection are being held as German prisoners of war in order toprotect American soldiers in enemy hands.).

1114.5 ARMED FORCES OF A STATE

Members of the armed forces of a State, including members of all groups that are part ofthe armed forces of a State, but excluding certain medical and religious personnel, 91 receivecombatant status (i.e., its rights, duties, and liabilities) by virtue of that membership. 92 Thissection addresses various classes of persons within the armed forces of a State.

4.5.1 Components of Armed Forces. The armed forces of a State may include a varietyof components, such as militia or volunteer corps that form part of those armed forces. 93

The U.S. armed forces include members of the active duty military, the reserve forces,and the National Guard. U.S. armed forces also include the Coast Guard, which normallyoperates under the Department of Homeland Security. 94

The U.S. armed forces may also include the Commissioned Corps of the U.S. PublicHealth Service, which normally operates under the Department of Health and Human Services. 95Similarly, members of the Commissioned Corps of the National Oceanic and AtmosphericAdministration, which normally operates under the Department of Commerce, may also becomepart of the U.S. armed forces. 96 Members of these and other organizations assigned to, andserving with, the U.S. armed forces may be subject to the Uniform Code of Military Justice. 97

91 Refer to 4.9 (Military Medical and Religious Personnel).92 See GPW art. 4A(1) (defining prisoners of war, in the sense of the present Convention, to include (1)[m]embers of the armed forces of a Party to the conflict who have fallen into the power of the enemy); HAGUE IVREG. art. 1 (The laws, rights, and duties of war apply to armies); LIEBER CODE art. 57 (So soon as a man isarmed by a sovereign government and takes the soldiers oath of fidelity, he is a belligerent;). Cf. sources cited infootnote 150 in 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State).93 See GPW art. 4A(1) (defining prisoners of war, in the sense of the present Convention, to include members ofmilitias or volunteer corps forming part of such armed forces who have fallen into the power of the enemy); HAGUEIV REG. art. 1 (In countries where militia or volunteer corps constitute the army, or form part of it, they areincluded under the denomination army.).94 See 10 U.S.C. 101(a)(4) (explaining that, for the purposes of U.S. domestic law, the term armed forces meansthe Army, Navy, Air Force, Marine Corps, and Coast Guard.); 14 U.S.C. 1 (The Coast Guard as establishedJanuary 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times. TheCoast Guard shall be a service in the Department of Homeland Security, except when operating as a service in theNavy.).95 42 U.S.C. 217 (In time of war, or of emergency involving the national defense proclaimed by the President, hemay by Executive order declare the commissioned corps of the [Public Health] Service to be a military service.).96 33 U.S.C. 3061 (The President may, whenever in the judgment of the President a sufficient national emergencyexists, transfer to the service and jurisdiction of a military department such vessels, equipment, stations, and officersof the Administration as the President considers to be in the best interest of the country. An officer of theAdministration transferred under this section, shall, while under the jurisdiction of a military department, haveproper military status and shall be subject to the laws, regulations, and orders for the government of the Army,Navy, or Air Force, as the case may be, insofar as the same may be applicable to persons whose retentionpermanently in the military service of the United States is not contemplated by law.).97 10 U.S.C. 802(a)(8) (Members of the National Oceanic and Atmospheric Administration, Public HealthService, and other organizations, when assigned to and serving with the armed forces, are subject to the UniformCode of Military Justice).

112 The U.S. armed forces may also include the volunteer auxiliary of the Air Force when theservices of the Civil Air Patrol are used in certain missions. 98

between the reserve and active components of the armed forces for the purpose of entitlement tobenefits and other matters, international law treats members of the reserve forces that are part ofthe armed forces of a State the same as other members of the armed forces.

In the United States, reserve armed forces include the reserve components of the Army,Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army National Guard of theUnited States and the Air National Guard of the United States. 99

4.5.2 Classes of Persons Within the Armed Forces.

4.5.2.1 Special Operations Forces. Special operations forces may be described as

military forces specially organized, trained, and equipped to achieve military, political,economic, and psychological objectives by unconventional military means in hostile, denied, orpolitically sensitive areas. 100 As members of the armed forces, special operations forces have thesame rights, duties, and liabilities as other members of the armed forces. 101

Nonetheless, in the past, some States have illegitimately questioned whether specialoperations forces are entitled to the privileges of combatant status. For example, during WorldWar II, Hitler directed that German forces summarily execute captured Allied special operationsforces. 102 Post-World War II war crimes tribunals found that this order was not a legitimate

98 See 10 U.S.C. 9442(b)(1) (The Secretary of the Air Force may use the services of the Civil Air Patrol to fulfillthe noncombat programs and missions of the Department of the Air Force.).99 10 U.S.C. 10101 (The reserve components of the armed forces are: (1) The Army National Guard of theUnited States. (2) The Army Reserve. (3) The Navy Reserve. (4) The Marine Corps Reserve. (5) The Air NationalGuard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.).100 JOINT PUBLICATION 3-05, Special Operations, ix (Jul. 16, 2014) (Special operations require unique modes ofemployment, tactics, techniques, procedures, and equipment. They are often conducted in hostile, denied, orpolitically and/or diplomatically sensitive environments, and are characterized by one or more of the following:time-sensitivity, clandestine or covert nature, low visibility, work with or through indigenous forces, greaterrequirements for regional orientation and cultural expertise, and a higher degree of risk. Special operations providejoint force commanders (JFCs) and chiefs of mission with discrete, precise, and scalable options that can besynchronized with activities of other interagency partners to achieve United States Government (USG) objectives.).101 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants).102 Adolf Hitler, Commando Order, reprinted in Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAWREPORTS 18, 20-21 (British Military Court, Brunswick, Jul. 29-Aug. 2, 1946); also reprinted in United States v. vonLeeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 525-27; also reprinted inThe Dostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 33-34 (U.S. Military Commission,Rome, Oct. 8-12, 1945).

113reprisal, violated the prohibition against executions without a fair trial, and improperly deniedPOW status to soldiers wearing a uniform behind enemy lines. 103

Special operations forces personnel, like other members of the armed forces, remainentitled to the privileges of combatant status, unless they temporarily forfeit such privileges byengaging in spying or sabotage. 104 In some cases, military personnel who do not wear thestandard uniform of their armed forces may nonetheless remain entitled to the privileges ofcombatant status because the wearing of such uniforms does not constitute the element of actingclandestinely or under false pretenses. 105 For example, special operations forces havesometimes dressed like friendly forces. 106 Special operations forces personnel remain entitled tothe privileges of combatant status even when operating detached from the main body of forcesbehind enemy lines. 107

4.5.2.2 Members Trained as Medical Personnel, but Not Attached to the MedicalService. Members of the armed forces might have medical training but not be designated asmilitary medical personnel. For example, before joining the armed forces, a person might havebeen trained as a nurse or physician, and after joining the armed forces might not be designatedas part of the medical corps.

Because such personnel have not been designated as military medical personnel, they areare combatants, like other members of the armed forces. 108 However, if they fall into the powerof the enemy during international armed conflict, such personnel may be required to tend tofellow POWs, in light of their previous training. In particular, POWs who, though not attachedto the medical service of their armed forces, are physicians, surgeons, dentists, nurses, or medicalorderlies may be required by the Detaining Power to exercise their medical functions in the

103 See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court,Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that Hitlers commando order was clearly illegal because itprovided that there should be no military courts, for even a war traitor is entitled to a trial, and because thecommando order was to apply to troops engaged on commando operations whether in uniform or not); TheDostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 27-33 (U.S. Military Commission, Rome,Oct. 8-12, 1945) (conviction of a German General for the murder of 15 U.S. Army personnel and rejection of hisdefense that the commando order was a valid and applicable superior order); Trial of Karl Adam Golkel andThirteen Others, V U.N. LAW REPORTS 45-53 (British Military Court, Wuppertal, Germany, May 15-21, 1946) (trialof German soldiers for killing eight members of the British Special Air Service); United States v. von Leeb, et al.(The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 527 (This order was criminal on itsface. It simply directed the slaughter of these sabotage troops.).104 Refer to 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).105 Refer to 4.17.2.1 (Acting Clandestinely or Under False Pretenses).106 Refer to 5.25.2.1 (Mimicking Other Friendly Forces).107 See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court,Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that [i]t is not possible to say that troops who engage in acts ofsabotage behind the enemy lines are bandits, as Hitler declared them. They carry out a legitimate act of war,provided the objective relates directly to the war effort and provided they carry it out in uniform.); LIEBER CODEart. 81 (Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which actsdetached from the main body for the purpose of making inroads into the territory occupied by the enemy. Ifcaptured, they are entitled to all the privileges of the prisoner of war.).108 Refer to 4.9.2.2 (Designated by Their Armed Forces).

114interests of POWs dependent on the same Power. 109 In that case, they shall continue to bePOWs, but shall receive the same treatment as corresponding medical personnel retained by theDetaining Power. 110 They shall be exempted from any other work under Article 49 of theGPW.111

4.5.2.3 Members Who Are Ministers of Religion Without Having Officiated as

Chaplains to Their Own Forces. Members of the armed forces might be ministers of religion,but might not be designated as military religious personnel. 112 Because such personnel have notbeen designated as military religious personnel, they are combatants, like other members of thearmed forces. 113 However, if they fall into the power of the enemy during international armedconflict, such personnel may minister to fellow POWs. In particular, POWs who are ministers ofreligion, without having officiated as chaplains to their own forces, shall be at liberty, whatevertheir denomination, to minister freely to the members of their community. 114 For this purpose,they shall receive the same treatment as chaplains retained by the Detaining Power. 115 Theyshall not be obliged to do any other work. 116

4.5.2.4 Draftees. Some States require military service for categories of theirnationals. The United States employs all-volunteer armed forces, although it has drafted itsnationals into military service in prior conflicts.

Under international law, a draftee, i.e., a person who has been compelled to join a Statesarmed forces, is to be treated the same as other members of the armed forces. 117

4.5.2.5 Deserters. A deserter from the armed forces of a belligerent who falls intothe power of the enemy in international armed conflict is a POW. 118 Similarly, a deserter who isinterned by a neutral State would also be treated as a POW. 119 The deserters relationship with109 GPW art. 32 (Prisoners of war who, though not attached to the medical service of their armed forces, arephysicians, surgeons, dentists, nurses or medical orderlies, may be required by the Detaining Power to exercise theirmedical functions in the interests of prisoners of war dependent on the same Power.).110 GPW art. 32 (In that case they shall continue to be prisoners of war, but shall receive the same treatment ascorresponding medical personnel retained by the Detaining Power.).111 GPW art. 32 (They shall be exempted from any other work under Article 49.).112 Refer to 4.9.2 (Requirements for Military Medical and Religious Status).113 Refer to 4.9.2.2 (Designated by Their Armed Forces).114 GPW art. 36 (Prisoners of war who are ministers of religion, without having officiated as chaplains to their ownforces, shall be at liberty, whatever their denomination, to minister freely to the members of their community.).115 GPW art. 36 (For this purpose, they shall receive the same treatment as the chaplains retained by the DetainingPower.).116 GPW art. 36 (They shall not be obliged to do any other work.).117 See 1958 UK MANUAL 89(i) (noting that [t]he members, male and female, of the land, sea and air forces areentitled to recognition as belligerent forces whether they have joined voluntarily or have been compelled to do so bytheir own law).118 See GREENSPAN, MODERN LAW OF LAND WARFARE 99 (Deserters from the enemy do not thereby lose their rightto be treated as prisoners of war if they fall into the hands of the opposing side.).119 Refer to 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).

115his or her armed forces is a question of that States domestic law and not international law.States generally forbid members of their armed forces from desertion and generally regardmembers of the armed forces who desert as continuing to be members of their armed forces.

Deserters who are subsequently captured by their own armed forces are not POWsbecause they are not in the power of the enemy and because the privileges of combatant statusare generally understood not to apply, as a matter of international law, between nationals andtheir State of nationality. 120

4.5.2.6 Defectors. Defectors are persons from one sides armed forces whovoluntarily join the armed forces of the opposing side. They are generally not regarded as POWswhile serving in their new armed force. 121

Defectors serving in the forces of the enemy who are captured by the State to which theyoriginally owed an allegiance generally would not be entitled to POW status because theprivileges of combatant status are generally understood not to apply, as a matter of internationallaw, between nationals and their State of nationality. 122

States may not compel POWs, retained personnel, or protected persons in their power todefect and serve in their armed forces. 123

4.5.3 Regular Armed Forces Who Profess Allegiance to a Government or an Authority

Not Recognized by the Detaining Power. During international armed conflict, members ofregular armed forces who profess allegiance to a Government or an authority not recognized bythe Detaining Power are treated as members of the armed forces of a State. 124 Under Article4A(3) of the GPW, they receive POW status, and they should also receive the rights, duties, andliabilities of combatants. 125

Article 4A(3) of the GPW was developed to address situations like those that hadoccurred during World War II, when members of a military force continued fighting after theirState had been occupied. 126 For example, military forces might continue to fight for a

120 Refer to 4.4.4 (Nationality and Combatant Status).121 Refer to 9.3.4.1 (Having Fallen).122 Refer to 4.4.4.2 (Nationals of a State Who Join Enemy Forces).123 Refer to 9.19.2.3 (Labor Assignments That May Be Compelled); 10.7.3 (Compulsory Work for ProtectedPersons in a Belligerents Home Territory); 11.20.1.1 (Prohibition on Compulsory Service in an OccupyingPowers Armed Forces).124 GPW art. 4A(3) (defining prisoners of war, in the sense of the present Convention, to include [m]embers ofregular armed forces who profess allegiance to a government or an authority not recognized by the DetainingPower who have fallen into the power of the enemy).125 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants).126 See INTERNATIONAL COMMITTEE OF THE RED CROSS, Report on the Work of the Conference of GovernmentExports for the Study of the Convention for the Protection of War Victims, 106 (Geneva, Apr. 14-26, 1947) (In itsreport, the ICRC stressed that certain States [during World War II] had denied the status of belligerents to combatantunits subject to a Government or authority which these States did not recognise; this despite the fact that these units(e.g. the French forces constituted under General de Gaulle) fulfilled all the conditions required for the granting of

116government-in-exile or for a government that had ceased to exist.127 Such a government wouldprovide the right authority for its regular armed forces to participate in the ongoing war and toreceive POW status upon capture by the enemy. 128 Members of those forces were sometimesdenied POW status by an enemy State, even though other States recognized the group to whichthey belonged as a co-belligerent force. 129

4.5.4 Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State.Under Article 4B(1) of the GPW, persons belonging, or having belonged, to the armed forces ofan occupied State should be treated as POWs if, while hostilities are continuing outside occupiedterritory, the Occupying Power considers it necessary, by reason of their allegiance to the armedforces, to intern them. 130

Article 4B(1) of the GPW seeks to address the proper status of an army demobilized bythe Occupying Power while a portion of those same armed forces continue the struggle. Whenthe forces are demobilized, they are treated as civilians, but when recalled for internment basedon their prior service, they are treated as POWs. 131 In particular, States developed this provisionto address Germanys practice during World War II of arresting demobilized military personnelfrom occupied States. 132 These personnel were often interned and sought to escape to join theongoing fighting. This provision was promulgated to ensure that individuals in similar

PW status. The Commission approved the ICRCs proposal that these armed forces should enjoy PW status,irrespective of the Government or authority under whose orders they might claim to be.).127 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 415 (Mr. Lamarle (France) realizedthat cases might arise where combatants claiming allegiance to an authority which was not recognized by theDetaining Power might be deprived of the benefit of the Convention; but he thought the word authority affordedsufficient safeguards to such combatants. After an exchange of views on the subject, the Committee agreed that theword authority afforded sufficient safeguards to combatants claiming allegiance to Governments which had ceasedto exist.).128 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).129 Refer to 3.3.3.3 (Recognition of Friendly Armed Groups as Lawful Belligerents).130 GPW art. 4B(1) ((1) Persons belonging, or having belonged, to the armed forces of the occupied country, if theoccupying Power considers it necessary by reason of such allegiance to intern them, even though it has originallyliberated them while hostilities were going on outside the territory it occupies, in particular where such persons havemade an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, orwhere they fail to comply with a summons made to them with a view to internment.).131 GPW COMMENTARY 69 (In fact, as one delegate to the Conference pointed out, the question relates to the properstatus of an army demobilized by the Occupying Power, while a portion of those same armed forces continue thestruggle. It is logical to treat its members as civilians until such time as they are recalled in order to be interned; butfrom that moment, it is equally logical to treat them as prisoners of war.).132 See GPW COMMENTARY 68 (During the Second World War, the Occupying Power, for security reasons,frequently arrested demobilized military personnel in occupied territory, especially officers. These men weregranted prisoner-of-war status but usually only after repeated representations by the International Committee of theRed Cross and the Governments concerned. In the report which the International Committee prepared for theGovernment Experts, it therefore proposed that the entitlement of such persons to prisoner-of-war status should beexplicitly mentioned and the Conference supported this suggestion.). For further historical background see LEVIE,POWS 66-67, II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 431-32, and the noteappended to In re Siebers, Special Court of Cassation, Feb. 20, 1950, The Hague, in 1950 INTERNATIONAL LAWREPORTS, 399-400.

117circumstances would receive POW treatment if they were interned. For example, the rules forthe parole of POWs would apply to them. 133 Similarly, the rules relating to POW escape wouldalso apply to them. 134 So, a demobilized person who disobeyed an internment order andattempted to escape to rejoin his or her armed force would, like a POW, be subject, at most, todisciplinary punishment in respect of the act of escape. 135

Persons belonging, or having belonged, to the armed forces of an occupied State wouldonly be entitled to receive POW treatment while an international armed conflict continues. 136For example, this provision would not apply to a situation like the occupation of Japan afterWorld War II because all hostilities had ended. 137

4.6 OTHER MILITIA AND VOLUNTEER CORPS

Under certain conditions, members of militia and volunteer corps that are not part of thearmed forces of a State qualify as combatants and receive the rights, duties, and liabilities ofcombatant status. 138 More specifically, Article 4(A)(2) of the GPW defines prisoners of war toinclude:

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

133 Refer to 9.11.2 (Parole of POWs).134 Refer to 9.25 (POW Escapes).135 Refer to 9.25.2.2 (Only Disciplinary Punishments in Respect of an Act of Escape).136 See LEVIE, POWS 67-68 (It is important to bear in mind that the foregoing provisions explicitly contemplate thatthe government of the unoccupied part of the territory of the State the members of whose armed forces are inquestion, or that States allies if it has been completely occupied, are continuing the hostilities. The mere existenceof a government-in-exile after the complete cessation of hostilities would not suffice to make the provisionapplicable. In other words, this provision was not intended to apply to the situation which arises when thecapitulation of a State is followed by the complete termination of armed hostilities.).137 See LEVIE, POWS 68 and footnote 261 ([T]his provision was not intended to apply to the situation which ariseswhen the capitulation of a State is followed by the complete termination of armed hostilities and would, therefore,not apply in a situation such as that which existed upon the capitulation of Japan in 1945.).138 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants).

118 (d) that of conducting their operations in accordance with the laws and customs of war. 139

Under these conditions, which are discussed below, members of these armed groups mayoperate as combatants in or outside their own territory, even if this territory is occupied. Bycontrast, a leve en masse may only be formed on the approach of the enemy to non-occupiedterritory. 140

4.6.1 GPW 4A(2) Conditions in General. The conditions set forth in Article 4A(2) of theGPW were derived from conditions found in the Regulations annexed to the 1899 Hague II andthe 1907 Hague IV. 141 These conditions reflect the attributes common to regular armed forces ofa State. 142 By seeking to ensure that participants in hostilities are sufficiently disciplined, law-abiding, and distinguishable from the civilian population, these conditions help protect thecivilian population from the hardships of war. In addition, these conditions contribute to themilitary effectiveness of the force that satisfies the conditions. 143

These conditions may be understood to reflect a burdens-benefits principle, i.e., the

receipt of certain benefits in the law of war (e.g., privileges of combatant status) requires theassumption of certain obligations. 144

4.6.1.1 GPW 4A(2) Conditions Required on a Group Basis. The armed group, asa whole, must fulfill these conditions for its members to be entitled to the privileges ofcombatant status. For example, if a member of an armed group met these requirements, but thearmed group did not, that member would not be entitled to the privileges of combatant status

139 GPW art. 4(A)(2). See also HAGUE IV REG. art. 1 (The laws, rights, and duties of war apply not only to armies,but also to militia and volunteer corps fulfilling the following conditions: -- 1. To be commanded by a personresponsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry armsopenly; and 4. To conduct their operations in accordance with the laws and customs of war.); 1899 HAGUE II REG.art. 1 (The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfillingthe following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixeddistinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations inaccordance with the laws and customs of war.).140 Refer to 4.7.1.3 (Approach of the Enemy to Non-Occupied Territory).141 See GPW COMMENTARY 49 ([T]here was unanimous agreement [at the 1949 Diplomatic Conference] that thecategories of persons to whom the Convention is applicable must be defined, in harmony with the HagueRegulations.).142 See GPW COMMENTARY 58 (explaining that an organization satisfying the conditions of GPW art. 4A(2) musthave the principal characteristics generally found in armed forces throughout the world, particularly in regard todiscipline, hierarchy, responsibility and honour.).143 JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899 549(General den Beer Poortugael, while fully endorsing the considerations set forth by the PRESIDENT and hisExcellency Mr. BEERNAERT, wishes to add a few words. But from a military standpoint also it must berecognized that it is to the benefit of the populations to impose on them the conditions contained in Articles 9 and 10[predecessors to GPW art. 4A(2) and 4A(6) and], which they must satisfy if they wish to take up arms. For it is anundeniable fact that to lead undisciplined and unorganized troops into the fire is to lead them to butchery.).144 Refer to 3.6.3.2 (Benefits-Burdens Principle in Law of War Rules).

119because the armed group failed to satisfy the conditions. 145 Similarly, isolated departures from acondition by a member of the armed group (e.g., a failure to comply with the conditions by amember of the armed group that was not directed by the armed groups leader) would notprevent the armed group from satisfying these conditions.

4.6.1.2 AP I and the GPW 4A(2) Conditions. AP I changed, for its Parties, theconditions under which armed groups that are not part of a States armed forces may qualify forcombatant status. 146 The United States has objected to the way these changes relaxed therequirements for obtaining the privileges of combatant status, and did not ratify AP I, in largepart, because of them. 147 A chief concern has been the extent to which these changes wouldundermine the protection of the civilian population. 148 The United States has expressed the viewthat it would not be appropriate to treat this provision of AP I as customary international law. 149

145 See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOKOF INTERNATIONAL LAW 173, 197 (1971) (the fate of the individual irregular is essentially linked with that of thegroup in which he operates. If the groups members, as a majority, always meet the legal conditions, the individualwill answer only for his own misdoings, and then as a prisoner of war who had the right to participate in the combat.If, however, the individual were punctilious in a group in which the majority did not observe the conditions on anyone occasion, he would not acquire combatant status or prisoner-of-war status upon capture, and will answer in lawas an individual who participated in combat with no legal right to do so, i.e. answerable in municipal law oroccupation law, or the law of war.).146 See AP I, arts. 1(4), 43, 44.147 See Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV(Another provision [of AP I] would grant combatant status to irregular forces even if they do not satisfy thetraditional requirements to distinguish themselves from the civilian population and otherwise comply with the lawsof war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.).148 See, e.g., John B. Bellinger, III, Lawyers and Wars: A Symposium in Honor of Edward R. Cummings, Sept. 30,2005, 2005 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 953, 955 (More problematic from thelawyers perspectiveor at least this lawyers perspectiveis how law deals with the kind of situation where awould-be terrorist seeks to cloak his actions in the garb of legitimate combatant. This second factor working againstcivilian protection is fueled in part by Article 44 of Additional Protocol I, which suggests that combatants do notneed to distinguish themselves from the civilian population except prior to and during an attack. To be fair, there isno doubt that a terrorist would not meet the combatancy definition of any instrument of international humanitarianlaw. But the very fact that Additional Protocol I allows greater flexibility in distinction undermines thisfundamental protection. The principle of distinction, among the foundational principles of humanitarian law, existsfor the purposes of civilian protection, to ensure that fighters can identify the combatant from the bystander. Article44, pressed so strongly for largely political reasons in the 1970s, undermines it. And as a result, one has to lamentthat the process of negotiating international humanitarian law instruments has not always inured to the civilianpopulations benefit.).149 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVEDIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (Article 44 grants combatantstatus to irregular forces in certain circumstances even if they do not satisfy the traditional requirements todistinguish themselves from the civilian population and otherwise comply with the existing laws of war. This wasnot acceptable as a new norm of international law. It clearly does not reflect customary law. While the U.S. is ofthe view that certain provisions in Protocol I reflect customary international law (see, e.g., Treaty Doc. 100-2, supra,at X), the provisions on wars of national liberation and combatant and prisoner-of-war status are definitely not inthis category. Accordingly, it is the view of the United States that it would be inappropriate to treat theseprovisions as part of customary international law under any circumstances.).

120 4.6.1.3 Application of GPW 4A(2) Conditions to the Armed Forces of a State.The text of the GPW does not expressly apply the conditions in Article 4A(2) of the GPW to thearmed forces of a State. 150 Thus, under the GPW, members of the armed forces of a Statereceive combatant status (including its privileges and liabilities) by virtue of their membership inthe armed forces of a State. 151 Nonetheless, the GPW 4A(2) conditions were intended to reflectattributes of States armed forces. 152 If an armed force of a State systematically failed todistinguish itself from the civilian population and to conduct its operations in accordance withthe law of war, its members should not expect to receive the privileges afforded lawfulcombatants. 153 Similarly, members of the armed forces engaged in spying or sabotage forfeittheir entitlement to the privileges of combatant status if captured while engaged in thoseactivities. 154

4.6.2 Belonging to a Party to the Conflict. The armed group must belong to a party to theconflict. 155 The requirement of belonging to a party establishes that the armed group fulfills ajus ad bellum requirement of right authority, i.e., it is acting on the authority of a State. 156 This

150 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 465-66 (General SLAVIN (Union ofSoviet Socialist Republics) said that according to the first paragraph, sub-paragraph I, of the working text it wouldappear that members of the Armed forces would have to fulfil the four traditional requirements mentioned in (a),(b), (c) and (d) in order to obtain prisoner of war status, which was contrary to the Hague Regulations (Article I ofthe Regulations concerning the Laws and Customs of War, 18 October 1907). General DEVIJVER (Belgium) pointedout that the above reproduced working text had been drafted with due regard to the Hague Regulations, and the firstparagraph, sub-paragraph (I), of the working text carefully specified that only members of militia or volunteer corpsshould fulfil all four conditions.). Cf. In re Lewinski (called von Manstein) Case, reprinted in ANNUAL DIGESTAND REPORTS OF PUBLIC INTERNATIONAL LAW CASES 509, 515-16 (H. Lauterpacht, ed., 1949) (Regular soldiersare so entitled without any of the four requirements set out in Article 1 [of the Hague IV Reg.]: they are requisite inorder to give the Militia and Volunteer Corps the same privileges as the Army.).151 Refer to 4.5 (Armed Forces of a State).152 Refer to footnote 142 in 4.6.1 (GPW 4A(2) Conditions in General).153 See Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third GenevaConvention of 1949, Feb. 7, 2002, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 1, 4 (We conclude, however,that the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces whowould be legally entitled to POW status. In other words, an individual cannot be a POW, even if a member of anarmed force, unless forces also are: (a) commanded by a person responsible for his subordinates; (b) hav[e] afixed distinctive sign recognizable at a distance; (c) carry[] arms openly; and (d) conduct[] their operations inaccordance with the laws and customs of war. Thus, if the President has the factual basis to determine that Talibanprisoners are not entitled to POW status under Article 4(A)(2) as members of a militia, he therefore has the groundsto also find that they are not entitled to POW status as members of an armed force under either Article 4(A)(1) orArticle 4(A)(3).) (brackets in original); BOTHE, PARTSCH, & SOLF, NEW RULES 234-35 (AP I art. 43, 2.1.2) (It isgenerally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered to beunnecessary and redundant to spell them out in the Conventions.).154 Refer to 4.17.5 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status).155 GPW art. 4A(2). Cf. LIEBER CODE art. 81 (Partisans are soldiers armed and wearing the uniform of their army,but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territoryoccupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.).156 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).

121requirement recognizes that members of a non-State armed group are not entitled to theprivileges of combatant status even if that armed group satisfies the other conditions. 157

The States authority may be granted by its representatives orally; it need not be grantedin writing, such as through a commission or warrant. In all cases, however, opposing parties tothe conflict must be able to discern that the armed group enjoys such authority. A States formalacknowledgement that an armed group belongs to it is sufficient. On the other hand, the bareclaim by the armed group that it acts on behalf of a State would be insufficient. In some cases,State support and direction to the armed group may establish that it belongs to the State. 158

4.6.3 Being Commanded by a Person Responsible for His or Her Subordinates. Thearmed group must be commanded by a person responsible for his or her subordinates; the armedgroup must have a commander with effective authority over the armed group. 159 Thisrequirement helps ensure that the armed group has sufficient discipline and organization toconduct its operations in accordance with the law of war. 160

The commander may derive his or her authority over the armed group by a regular ortemporary commission from a State. However, a commander may derive his or her commandfrom another position or authority. For example, the armed group may be formed informally andmay have elected the commander as its leader. In practice, a State may provide members of thearmed group with certificates or distinctive badges to show that they are officers, or military

157 See The Military Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13,1969), LEVIE, DOCUMENTS ON POWS 776 (explaining that the most basic condition of the right of combatants to beconsidered upon capture as prisoners of war is belonging to a belligerent State and that if persons do not belong tothe Government or State for which they fight, they do not possess the right to enjoy the status of prisoners of warupon capture.). Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 237 (AP I art. 43, 2.3.1) (gangs of terrorists acting ontheir own behalf and not linked to an entity subject to international law are excluded from the definition of armedforces of a Party to the Conflict in AP I similar to how they would be excluded under Article 4A(2) of the GPW).158 See The Military Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13,1969), LEVIE, DOCUMENTS ON POWS 776-77 (It is natural that, in international armed conflicts, the Governmentwhich previously possessed an occupied area should encourage and take under its wing the irregular forces whichcontinue fighting within the borders of the country, give them protection and material assistance, and that therefore acommand relationship should exist between such Government and the fighting forces, with the result that acontinuing responsibility exists of the Government and the commanders of its army for those who fight in its nameand on its behalf.).159 See GREENSPAN, MODERN LAW OF LAND WARFARE 59 (The commander must be a person responsible for hissubordinates, that is, his authority over those in his command must be effective.).160 See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOKOF INTERNATIONAL LAW 173, 201 (1971) (explaining that this condition does probably mean that the commandermust have sufficient authority to ensure that the conditions applicable to the members of the group, necessary forlawful combatancy, are observed.); 1958 UK MANUAL 91 note 1 (explaining that Field Marshall Rundstedt, C.-in-C. of the German armed forces in the West, disclaimed all responsibilities for the atrocities by Waffen S.S. unitson the ground that neither their commanders nor members were subject to military law and that he could take nodisciplinary action against them, and thus German Waffen S.S. paramilitary units used during World War IIfailed to meet this condition and were not lawful combatants).

122personnel responsible to higher authority, and not private persons acting on individualinitiative. 161

The authority of the commander over his or her subordinates gives rise to acorresponding duty to ensure that the armed groups members conduct their operations inaccordance with the law of war. 162

4.6.4 Having a Fixed Distinctive Sign Recognizable at a Distance. Members of the

armed group should display a fixed distinctive sign or other device recognizable at a distance.The essence of this requirement is that members of the armed group are distinguishable from thecivilian population. 163 By helping to ensure that members of the armed group can be visuallydistinguished from civilians, this requirement helps protect the civilian population from beingerroneously made the object of attack. 164

4.6.4.1 Distinctive Sign. The requirement does not specify a particular sign oremblem that persons must wear. 165 Wearing a military uniform satisfies this condition.However, a full uniform is not required. 166 The sign suffices if it enables the person to be161 1958 UK MANUAL 91 (The first condition, to be commanded by a person responsible for his subordinates, isfulfilled if the commander of the corps is regularly or temporarily commissioned as an officer or is a person ofposition and authority, or if the members are provided with certificates or badges granted by the government of theState to show that they are officers, or soldiers, so that there may be no doubt that they are not partisans acting ontheir own responsibility. State recognition, however, is not essential, and an organisation may be formedspontaneously and elect its own officers.).162 Refer to 18.23.3 (Command Responsibility).163 See GREENSPAN, MODERN LAW OF LAND WARFARE 59 (Soldiers must be dressed in such a fashion that they areclearly distinguishable from the general population as members of the armed forces.).164 See Abraham Sofaer, Legal Adviser, Department of State, The Rationale for the United States Decision, 82 AJIL784, 786 (1988) (Inevitably, regular forces would treat civilians more harshly and with less restraint if theybelieved that their opponents were free to pose as civilians while retaining their right to act as combatants and theirPOW status if captured.). For example, LEVIE, POWS 50 footnote 187 (In Vietnam individuals who wereapparently civilian noncombatants (women, children, working farmers, etc.) would approach American servicemenin seeming innocence and then suddenly toss a hand grenade at them. After a very few such incidents the soldiersunderstandably came to distrust all civilians while they were in the field and frequently took definitive action uponsuspicion and without waiting to ascertain the facts. Thus, the original illegal actions taken by the guerrillassubsequently endangered the members of the civilian population who, as noncombatants, were entitled to beprotected in their status.) (internal citations omitted).165 See GPW COMMENTARY 52 (The drafters of the 1949 Convention, like those of the Hague Conventions,considered it unnecessary to specify the sign which members of the armed forces should have for the purposes ofrecognition. It is the duty of each State to take steps so that members of its armed forces can be immediatelyrecognized as such and to see to it that they are easily distinguishable from civilians.).166 See, e.g., 1958 UK MANUAL 92 (The second condition, relating to a fixed distinctive sign recognisable at adistance, would be satisfied by the wearing of a military uniform, but something less than a complete uniform willsuffice.); 1914 RULES OF LAND WARFARE 33 (The distinctive sign. This requirement will be satisfied by thewearing of a uniform or even less than a complete uniform.); SPAIGHT, WAR RIGHTS ON LAND 57 (The distinctiveemblem does not mean a uniform.). Cf. ICRC AP COMMENTARY 468 (1577) (What constitutes a uniform, andhow can emblems or nationality be distinguished from each other? The Conference in no way intended to definewhat constitutes a uniform . [A]ny customary uniform which clearly distinguished the member wearing it froma non-member should suffice. Thus a cap or an armlet, etc. worn in a standard way is actually equivalent to auniform.).

123distinguished from the civilian population. For example, a helmet or headdress that makes thesilhouette of the individual readily distinguishable from that of a civilian can meet thisrequirement. Similarly, a partial uniform (such as a uniform jacket or trousers), load bearingvest, armband, or other device could suffice, so long as it served to distinguish the members fromthe civilian population. Formally notifying enemy forces of the distinctive sign is not required,and the proposal to add such a requirement was not accepted by States. 167 Such notification,however, may avoid misunderstanding and facilitate claims of POW status for captured membersof the armed group.

4.6.4.2 Fixed. The text of the GPW indicates that the sign should be fixed.This requirement has been interpreted to mean that the sign must be such that it cannot be easilyremoved and disposed of at the first sign of danger. 168 In practice, however, it would beimportant to assess whether members of the armed group are functionally distinguishable fromthe civilian population, even if the distinctive sign that they wear is not permanent and could beremoved. 169

4.6.4.3 Visible at a Distance. Distance has not been defined, but may beinterpreted as requiring that the sign be easily distinguishable by the naked eye of ordinarypeople at a distance at which the form of the individual can be determined. 170

167 See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: III THE CONFERENCE OF1907 6 (1921) (The PRESIDENT first takes up the German amendment relating to Article 1, tending to requireprevious notice to the hostile party of fixed distinctive emblems recognizable at a distance. He recalls that thisamendment was rejected by 23 votes to 11, and asks whether it is again advanced by the German delegation. On thenegative answer of Major General VON GUNDELL, he considers it useless to put the question to discussion andpasses to Article 2.).168 See LEVIE, POWS 48 (a resistance fighter must wear some item which will identify him as a combatant, therebydistinguishing him from the general population, and that item must be such that he cannot remove and dispose of itat the first sign of danger. A handkerchief, or rag, or armband slipped onto or loosely pinned to the sleeve does notmeet this definition. An armband sewed to the sleeve, a logotype of sufficient size displayed on the clothing, aunique type of jacket-these will constitute a fixed and distinctive identifying insignia, effectively separating thecombatant of the moment from the rest of the population.); GREENSPAN, MODERN LAW OF LAND WARFARE 59(Where a complete uniform is not worn, and this is sometimes not possible because of the poverty of the country,sudden emergency or other reasons, the fixed distinctive sign should be something which cannot be instantly takenoff or assumed at will, thus enabling a combatant to appear a peaceful citizen one moment and a soldier the next.The sign should be part of the clothing or sewn to it.); 1958 UK MANUAL 92 (Something in the nature of a badgesewn on the clothing should therefore be worn in addition [to a distinctive helmet] in order to meet the conditionthat the sign must be fixed.).169 See FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 16-17 (1862) (The Southern prisoners made at Fort Donelson, whom I have seen at the West, had no uniform. Theywere indeed dressed very much alike, but it was the uniform dress of the countryman in that region. Yet they weretreated by us as prisoner of war, and well treated too. Nor would it be difficult to adopt something of a badge, easilyput on and off, and to call it a uniform. It makes a great difference, however, whether the absence of the uniform isused for the purpose of concealment or disguise, in order to get by stealth within the lines of the invader, fordestruction or life or property, or for pillage, and whether the parties have no organization at all, and are so smallthat they cannot act otherwise than by stealth.).170 See 1958 UK MANUAL 92 (The distance at which the sign should be visible is necessarily vague, but it isreasonable to expect that the silhouette of an irregular combatant in the position of standing against the skylineshould at once be distinguishable from the outline of a peaceful inhabitant, and this by the naked eye of an ordinaryindividual at a distance at which the form of the individual can be determined.); 1914 RULES OF LAND WARFARE

124 4.6.5 Carrying Arms Openly. Members of the armed group must carry their armsopenly. 171 This requirement is not satisfied if the armed group makes a practice of carrying onlyconcealed weapons or of hiding weapons on the approach of enemy forces to avoid identificationas fighters. 172

4.6.6 Conducting Their Operations in Accordance With the Laws and Customs of War.The armed group, as a whole, must conduct its operations in accordance with the law of war.Evidence that an armed group enforced the law of war (such as by promulgating instructionsregarding law of war requirements and punishing violations by its members) would helpestablish that an armed group meets this condition.

4.7 LEVE EN MASSE

A leve en masse is a spontaneous uprising of the inhabitants of non-occupied territory

who, on the approach of the enemy in an international armed conflict, take up arms to resist theinvading forces, without having time to form themselves into regular armed units. 173Participants in a leve en masse are entitled to the privileges of combatant status, provided thatthey carry their arms openly and respect the laws and customs of war. 174

4.7.1 Conditions for a Leve en Masse. The following discussion elaborates upon someof the conditions for a leve en masse.

33 (The distance that the sign must be visible is left vague and undetermined and the practice is not uniform. Thisrequirement will be satisfied certainly if the sign is easily distinguishable by the naked eye of ordinary people at adistance at which the form of the individual can be determined.); CHARLES HENRY HYDE, II INTERNATIONAL LAW:CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED STATES 291 footnote 3 (1922) (quoting the same provisionin the 1917 U.S. Rules of Land Warfare); SPAIGHT, WAR RIGHTS ON LAND 57 (explaining that [i]f the sign isrecognizable at a distance at which the naked eye can distinguish the form and color of a persons dress, allreasonable requirements appear to be met and noting the Japanese view during the Russo-Japanese War that aRussian free corps that would wear no uniform but only a distinctive sign on the cap and sleeve would only beconsidered belligerents if they can be distinguishable by the naked eye from the ordinary people or fulfill theconditions for militias or volunteers by the Hague Rglement.).171 See GPW art. 4A(2)(c); HAGUE IV REG. art. 1(3).172 1958 UK MANUAL 94 (The third condition is that irregular combatants shall carry arms openly. They maytherefore be refused the rights of the armed forces if it is found that their sole arm is a pistol, hand-grenade, ordagger concealed about the person, or a sword-stick or similar weapon, or if it is found that they have hidden theirarms on the approach of the enemy.).173 GPW art. 4A(6) (defining prisoners of war, in the sense of the present Convention, to include [i]nhabitants ofa non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invadingforces, without having had time to form themselves into regular armed units, provided they carry arms openly andrespect the laws and customs of war who have fallen into the power of the enemy); HAGUE IV REG. art. 2 (Theinhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take uparms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shallbe regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.); LIEBERCODE art. 51 (If the people of that portion of an invaded country which is not yet occupied by the enemy, or of thewhole country, at the approach of a hostile army, rise, under a duly authorized levy, en masse to resist the invader,they are now treated as public enemies, and, if captured, are prisoners of war.).174 For more background, see LEVIE, POWS 64-66.

125 4.7.1.1 Spontaneous. A leve en masse is a spontaneous uprising in whichmembers have not had time to form into regular armed units. 175 Thus, unlike other categories oflawful combatants, persons who join a leve en masse need not wear a distinctive sign nor beorganized under a responsible command. The spontaneity of their response generally precludestheir being able to take such measures.

4.7.1.2 Inhabitants. A leve en masse is understood to reflect the right of

inhabitants to resist approaching enemy forces. Non-inhabitants who travel to a territory to resistinvading forces would not be entitled to participate in a leve en masse. 176

4.7.1.3 Approach of the Enemy to Non-Occupied Territory. A leve en masse

may only be formed on the approach of the enemy to non-occupied territory. Once thebelligerent has established an occupation, the local population should comply with the orders ofthe occupation force, and a leve en masse may not be formed. 177 Similarly, even before theestablishment of an occupation, inhabitants of areas that have already been invaded may notform a leve en masse. 178

By contrast, members of an organized resistance movement under Article 4A(2) of the

GPW may operate as combatants in or outside their own territory, even if this territory isoccupied. 179

4.7.2 Leve en Masse Discerning Participants. Should some inhabitants form a leve enmasse to defend an area, it may be justifiable for the invading force to detain all persons ofmilitary age in that area and treat them as POWs. 180 Even if an inhabitant who joined orparticipated in the leve en masse lays down arms, if he or she is later captured, he or she may be

175 See GREENSPAN, MODERN LAW OF LAND WARFARE 63 (the essence of a leve en masse is that it isunorganized.).176 Compare 10.3.2.1 (Find Themselves).177 Refer to 11.7.1 (Inhabitants Obedience to the Occupying Power).178 See LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 258 (81) (Article 2 [of the HAGUE IV REG.]distinctly speaks of the approach of the enemy, and thereby sanctions only such a levy en masse as takes place interritory not yet invaded by the enemy. Once the territory is invaded, although the invasion has not yet ripened intooccupation, a levy en masse is no longer legitimate. But, of course, the term territory, as used by Article 2, is notintended to mean the whole extent of the State of a belligerent, but only such parts of it as are not yet invaded. Forthis reason, if a town is already invaded, but not a neighbouring town, the inhabitants of the latter may, on theapproach of the enemy, legitimately rise en masse.).179 Refer to 4.6 (Other Militia and Volunteer Corps).180 1956 FM 27-10 (Change No. 1 1976) 65 (Should some inhabitants of a locality thus take part in its defense, itmight be justifiable to treat all the males of military age as prisoners of war.); 1958 UK MANUAL 100 (Where themajority of inhabitants of a locality have taken part in its defence in circumstances amounting to a leve en masse, itis justifiable and probably advisable to treat all the male inhabitants of military age as prisoners of war, leaving it tothe individual concerned to claim that they took no part in the leve en masse or defence of the locality.).

126detained as a POW. 181 If a person joins a leve en masse, he or she may be held as a POW evenif he or she actually took no part in fighting. 182

If detained, a person believed to have participated in a leve en masse should be treated

as a POW until a determination is otherwise made by a competent tribunal. 183 If a competenttribunal determines that a person did not join the leve en masse but instead committed privateacts of hostility against enemy military forces, 184 the person may be treated as an unprivilegedbelligerent. 185

4.8 RIGHTS, DUTIES, AND LIABILITIES OF CIVILIANS

Like combatants, members of the civilian population also have certain rights, duties, andliabilities under the law of war. Civilians may not be made the object of attack. If detained,civilians are entitled to humane treatment and a variety of additional protections. Civilians lackthe combatants privilege, and may be punished, after a fair trial, by an enemy State for engagingin hostilities against it.

4.8.1 Civilians Notes on Terminology. Like other terms, civilian is used in a varietyof different ways in the law of war. 186

4.8.1.1 Civilian Versus Military. Sometimes, civilian is used to describe

persons who are not military personnel. For example, persons authorized to accompany thearmed forces are often called civilians in this sense, even though they are POWs if they fallinto the power of the enemy during international armed conflict. 187

4.8.1.2 Civilian Versus Combatant. Civilian is also often used to refer to

persons who are not combatants. Since combatant is often used in different ways, civilian,correspondingly, is also used in different ways. For example, sometimes civilians is used torefer to persons who lack the right to participate in hostilities. Other times civilian is used torefer to persons who neither have the right to participate in hostilities nor have in factparticipated in hostilities. 188 For example, civilian casualty reports generally excludeinsurgents or terrorists, even though some might call such persons civilians because they arenot entitled to participate in hostilities.

181 1956 FM 27-10 (Change No. 1 1976) 65 (Even if inhabitants who formed the levee en masse lay down theirarms and return to their normal activities, they may be made prisoners of war.).182 1958 UK MANUAL 100 (If it is shown that they joined the leve en masse, but took no part in the defence, theymay be held as prisoners of war.).183 Refer to 4.27.3 (Competent Tribunal to Assess Entitlement to POW Status or Treatment).184 Refer to 4.18 (Private Persons Who Engage in Hostilities).185 Refer to 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).186 Refer to 4.3.2 (Combatant Notes on Terminology).187 Refer to 4.15.3 (Persons Authorized to Accompany the Armed Forces Detention).188 See, e.g., GC COMMENTARY 134 (These rules [for the protection of the wounded and sick] are even moreessential when the wounded or sick person is a civilian, i.e. a person who, by definition, takes no part in thehostilities.).

127 4.8.1.3 Civilian in the GC. The GC does not define civilian, although it uses 189the word. The GC uses the term protected person to refer to persons protected by theConvention. 190 The GC excludes from the definition of protected person those persons whoare protected under the other 1949 Geneva Conventions, e.g., POWs and retained personnel. 191In some cases, protected persons can include a person detained as a spy or saboteur, or as aperson under definite suspicion of activity hostile to the security of the Occupying Power,although such persons are not entitled to all the protections applicable to protected persons. 192

4.8.1.4 Civilian in AP I and AP II. AP I defines civilian in opposition to

combatant; under AP I, anyone who is not a combatant is, by definition, a civilian. 193 TheUnited States has objected to AP Is definition of combatant. 194 AP II uses the term civilianwithout providing a definition. 195

4.8.1.5 General Usage of Civilian in This Manual. This manual generally usescivilian to mean a member of the civilian population, i.e., a person who is neither part of norassociated with an armed force or group, nor otherwise engaging in hostilities.

4.8.2 Civilians Conduct of Hostilities. Civilians may not be made the object of attack,unless they take direct part in hostilities. 196 The wounded and sick, as well as the infirm, andexpectant mothers, shall be the object of particular protection and respect. 197 Civilians may bekilled incidentally in military operations; however, the expected incidental harm to civilians maynot be excessive in relation to the anticipated military advantage from an attack, 198 and feasibleprecautions must be taken to reduce the risk of harm to civilians during military operations. 199

189 See, e.g., GC art. 10 (The provisions of the present Convention constitute no obstacle to the humanitarianactivities which the International Committee of the Red Cross or any other impartial humanitarian organization may,subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and fortheir relief.).190 Refer to 10.3 (Protected Person Status).191 Refer to 10.3.2.3 (Not Protected by the GWS, GWS-Sea, or the GPW).192 GC art. 5. Refer to 10.3.2.4 (Unprivileged Belligerents Not Per Se Excluded From Protected Person Status).193 See AP I art. 50(1) (A civilian is any person who does not belong to one of the categories of persons referred toin Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubtwhether a person is a civilian, that person shall be considered to be a civilian.).194 Refer to 4.6.1.2 (AP I and the GPW 4A(2) Conditions).195 See, e.g., AP II art. 13 (1. The civilian population and individual civilians shall enjoy general protection againstthe dangers arising from military operations.).196 Refer to 5.9 (Civilians Taking a Direct Part in Hostilities).197 GC art. 16 (The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particularprotection and respect.).198 Refer to 5.12 (Proportionality in Conducting Attacks).199 Refer to 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons andObjects); 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the PartySubject to Attack).

128 Civilians who engage in hostilities thereby forfeit the corresponding protections ofcivilian status and may be liable to treatment in one or more respects as unprivilegedbelligerents. 200

4.8.3 Civilians Detention. In general, civilians may be subject to non-violent measures

that are justified by military necessity, such as searches, or temporary detention. 201 Belligerentsor Occupying Powers may take necessary security measures in relation to civilians, includinginternment or assigned residence for imperative reasons of security. 202

Enemy civilians who are interned during international armed conflict or occupationgenerally are classified as protected persons under the GC and receive a variety ofprotections. 203 Chapter X addresses in detail the required treatment of enemy civilian interneesduring international armed conflict and occupation. In all circumstances, detained civilians mustbe treated humanely. 204 Special categories of civilians, such as children, may require additionalconsideration during detention. 205

4.8.4 Civilians Legal Liability Under an Enemy States Domestic Law. Unlikecombatants, civilians lack the combatants privilege excepting them from the domestic law of theenemy State. Civilians who engage in hostilities may, after a fair trial, be punished by anopposing State. 206

A State that is an Occupying Power has additional authorities over enemy civilians thatextend beyond the ability to punish their unauthorized participation in hostilities. 207

Note, however, the special cases of persons authorized to accompany the armed forces, 208members of the merchant marine and civil aircraft, 209 and participants in a leve en masse. 210

4.9 MILITARY MEDICAL AND RELIGIOUS PERSONNEL

Medical personnel exclusively engaged in the search for, or the collection, transport ortreatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in theadministration of medical units and establishments, as well as chaplains attached to the armed200 Refer to 4.18 (Private Persons Who Engage in Hostilities).201 Refer to 5.3.2.1 (Non-Violent Measures That Are Militarily Necessary).202 Refer to 10.6 (Measures of Control and Security).203 Refer to 10.3 (Protected Person Status).204 Refer to 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).205 Refer to 4.20 (Children).206 Refer to 4.18.3 (Private Persons Who Engage in Hostilities Lack of the Privileges of Combatant Status).207 Refer to 11.7 (Authority of the Occupying Power Over Inhabitants).208 Refer to 4.15.4 (Persons Authorized to Accompany the Armed Forces Liability Under Domestic Law forParticipation in Hostilities).209 Refer to 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).210 Refer to 4.7 (Leve en Masse).

129forces are treated as a special category under the law of war. 211 This manual generally refers tothem as military medical and religious personnel.

Under certain circumstances, (1) the authorized staff of voluntary aid societies and (2) thestaff of a recognized aid society of a neutral country are treated like military medical andreligious personnel. 212

4.9.1 Types of Military Medical and Religious Personnel. Military medical and religiouspersonnel include: (1) medical personnel exclusively engaged in the search for, or the collection,transport, or treatment of the wounded or sick, or in the prevention of disease; (2) staffexclusively engaged in the administration of medical units and establishments; and (3) chaplainsattached to the armed forces. 213

personnel exclusively engaged in the search for, or the collection, transport, or treatment of thewounded or sick, or in the prevention of disease include military physicians, dentists, nurses,orderlies, stretcher-bearers, and other persons belonging to the armed forces who give direct careto the wounded and sick. 214

Persons who are exclusively engaged in the prevention of disease also qualify as militarymedical personnel. For example, veterinary personnel qualify for military medical status, if theyare exclusively engaged in providing health services for military personnel (e.g., performingfood safety inspections and ensuring that animal illnesses do not spread to humans). However,as a general matter, veterinary personnel would not qualify for military medical status based onbeing part of the veterinary service. 215

4.9.1.2 Staff Exclusively Engaged in Support to Medical Units and

Establishments. In addition to persons directly engaged in medical duties, medical personnelalso include staff exclusively engaged in the administration of medical units and establishments.These persons also receive status as medical personnel provided that they are exclusivelyassigned to the Medical Service. 216 For example, Medical Service Corps personnel, and211 GWS art. 24.212 Refer to 4.11 (Authorized Staff of Voluntary Aid Societies); 4.12 (Staff of a Recognized Aid Society of aNeutral Country).213 GWS art. 24 (Medical personnel exclusively engaged in the search for, or the collection, transport or treatmentof the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medicalunits and establishments, as well as chaplains attached to the armed forces, shall be respected and protected at alltimes.).214 GWS COMMENTARY 218 (Medical personnel proper. These are the doctors, surgeons, dentists, chemists,orderlies, nurses, stretcher-bearers, etc., who give direct care to the wounded and sick.).215 See GWS COMMENTARY 205 ([GWS Article 22(4) of the GWS], which dates from 1929, was introduced at thesuggestion of the United States Delegation, which pointed out that veterinary personnel were attached to medicalunits in the American Army. A proposal, made by another delegation in 1929, to place the Veterinary Service onthe same footing as the Medical Service was, on the other hand, rejected.).216 GWS COMMENTARY 219 (These are persons who look after the administration of medical units andestablishments, without being directly concerned in the treatment of the wounded and sick. They include officestaff, ambulance drivers, cooks (male or female), cleaners, etc. Like the previous category, they form part of the

130individuals with a non-medical Military Occupation Specialty permanently assigned to a medicalunit or facility (such as its cooks, clerks and supply personnel, or crews operating permanentmedical aircraft), would qualify for military medical status.

4.9.1.3 Chaplains Attached to the Armed Forces. Chaplains attached to the armedforces include any cleric, regardless of faith, who is attached to the armed forces of a belligerentand assigned duties exclusively of a religious or spiritual nature. 217

4.9.2 Requirements for Military Medical and Religious Status. To acquire and retainmilitary medical and religious status, members of the armed forces must (1) belong to a forcewhose members qualify for POW status; (2) be designated as exclusive medical or religiouspersonnel by their armed forces; and (3) serve exclusively in a medical or religious capacity.

Underlying military medical and religious status is the principle that the armed forceshave committed to use these personnel exclusively in a humanitarian role; thus, these personnelhave a supra-national and quasi-neutral character because their humanitarian duties placethem above the conflict. 218

4.9.2.1 Belong to a Force Whose Members Qualify for POW Status. To acquiremilitary medical and religious status, a person must belong to an armed force whose membersqualify for POW status, i.e., the armed forces of a State, regular armed forces who professallegiance to a government or an authority not recognized by the Detaining Power, or othermilitia and volunteer corps meeting the conditions in the GPW.219 For example, medicalpersonnel belonging to non-State armed groups would not be entitled to retained personnel statusunder the GWS, GWS-Sea, and GPW because their members do not qualify for POW status.

Medical Service of the armed forces, and accordingly had to be accorded the same immunity as medical personnelproper. They form an integral part of medical units and establishments, which could not function properly withouttheir help. They too must be exclusively assigned to the Medical Service.).217 GWS art. 24. Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 99 (AP I art. 8, 2.6) (In the new definition [ofreligious personnel in AP I], the Christian notion of chaplain is only used by way of an example. Religiouspersonnel are ministers of any religion. What is a minister will not always be easy to determine, because thatconcept varies from religion to religion. Again the word exclusively adds some precision. A lay preacher, being,if a minister, a part-time minister, is not protected as religious personnel. Furthermore, the protection does notextend to every individual minister. The protection granted by the First and Second Conventions only applies tothose attached to the armed forces or to a hospital ship.).218 GWS COMMENTARY 244 (On the one hand, the Conference thought it necessary to affirm the supra-national andquasi-neutral character of personnel whose duties placed them above the conflict.). See also Vowinckel v. FirstFederal Trust Co., 10 F.2d 19, 21 (9th Cir. 1926) (Red Cross surgeons and nurses, who are engaged exclusively inameliorating the condition of the wounded of the armies in the field, and in alleviating the sufferings of mankind ingeneral, are not enemies of the United States in any proper sense of that term.); WINTHROP, MILITARY LAW &PRECEDENTS 779 (Another class who are to be exempt from violence, or seizure as prisoners, are the surgeons,assistants and employees charged with the care and transport of the wounded on the field and the attendance uponthem in field ambulance or hospital. Persons of this class enjoy the rights of neutrality, provided they take noactive part in the operations of war.).219 Refer to 4.5 (Armed Forces of a State); 4.5.3 (Regular Armed Forces Who Profess Allegiance to aGovernment or an Authority Not Recognized by the Detaining Power); 4.6 (Other Militia and Volunteer Corps).

131 4.9.2.2 Designated by Their Armed Forces. To acquire military medical andreligious status, members of the armed forces must be designated as such by their armed forces,usually by being part of the official medical or religious service. 220 A member of the armedforces cannot designate himself or herself as military medical or religious personnel.

Thus, members of the armed forces do not acquire military medical and religious statusmerely by performing medical or religious functions or by having medical or religious training.For example, a member of a special operations unit might be trained as a medical specialist, butnot be designated as military medical personnel, because that person is expected to perform bothcombatant and medical duties. That person, therefore, would not receive the rights, duties, andliabilities related to military medical status. He or she, however, may be treated like militarymedical personnel while detained by the enemy by being required to perform medical duties. 221

4.9.2.3 Exclusively Engaged in Humanitarian Duties. In order to establish and

maintain their status as military medical or religious personnel, these personnel must serveexclusively in a humanitarian capacity. This assignment must generally be permanent. 222

Military physicians or other medical specialist personnel who are not exclusivelyengaged in humanitarian duties, such as duties that involve committing acts harmful to theenemy, would not be entitled to military medical status. 223 For example, an Army MedicalCorps or Medical Service Corps officer serving as the commander of a tactical convoy would notbe entitled to military medical status. 224 Similarly, in general, persons who engage in combatsearch and rescue missions would not be exclusively engaged in humanitarian duties, sincepreventing the capture of combatants by the adversary constitutes an act harmful to the enemy. 225

220 See GWS COMMENTARY 218 (Article 24 refers to the official medical personnel and chaplains of the armedforces.); id. at 220 (On the other hand, chaplains, to be accorded immunity, must be attached to the armed forces.They do not attach themselves. The decision will rest with the competent military authorities and the relationshipmust be an official one. Accordingly, ministers of religion who wish to serve in a non-official capacity, are notcovered by the Convention, and, until such time as they have been regularly appointed, act at their own risk andperil.). Cf. GPW art. 32 (referring to POWs who, though not attached to the medical service of their armed forces,are physicians, surgeons, dentists, nurses or medical orderlies, as not being entitled to retained personnel status).221 Refer to 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service); 4.5.2.3(Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces).222 See GWS COMMENTARY 219 (The words exclusively engaged indicate that the assignment must be permanent,which is not the case in Article 25 dealing with auxiliary personnel.).223 Refer to 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).224 See W. Hays Parks, Status of Certain Medical Corps and Medical Service Corps Officers under the GenevaConventions, reprinted in THE ARMY LAWYER 5 (8) (Apr. 1989) (U.S. Army MSC officers, AMEDDnoncommissioned officers, or other Medical Corps personnel serving in positions that do not meet the exclusivelyengaged criteria of article 24 are not entitled to its protections but, under article 25, are entitled to protection fromintentional attack during those times in which they are performing medical support functions. This would includephysicians who, while serving as medical company commanders, might be detailed to perform the duties specifiedin paragraph 2b. [2b. The medical company commander, a physician, and the executive officer, an MSC officer,by nature of their positions and grade, may be detailed as convoy march unit commanders. In this position theywould be responsible for medical and nonmedical unit routes of march, convoy control, defense, and repulsingattacks.]).225 Refer to 7.10.3.1 (Acts Harmful to the Enemy).

132However, these individuals may be treated like auxiliary medical personnel or members of thearmed forces who are trained in medical care, but who are not attached to the medical service. 226

The requirement that military medical and religious personnel serve exclusively in ahumanitarian capacity not only requires that they refrain from acts harmful to the enemy, but alsohas been interpreted as an affirmative obligation to serve in a humanitarian capacity. Forexample, captured military medical personnel who refuse to perform their medical duties to carefor fellow prisoners would not be entitled to retained personnel status. 227

4.10 RIGHTS, DUTIES, AND LIABILITIES OF MILITARY MEDICAL AND RELIGIOUS PERSONNEL

Although military medical and religious personnel are members of, or attached to, thearmed forces and are in many respects treated like combatants, they are afforded specialprivileges so that they may fulfill their humanitarian duties. They must be respected andprotected in all circumstances. In turn, they generally may not commit acts harmful to theenemy. If they fall into the power of the enemy during international armed conflict, they may beretained to care for, or minister to, POWs.

4.10.1 Military Medical and Religious Personnel - Conduct of Hostilities. Military

medical and religious personnel may not be made the object of attack. 228 However, militarymedical and religious personnel must accept the risks of incidental harm from militaryoperations. 229

Military medical and religious personnel generally may not commit acts harmful to theenemy (e.g., resisting lawful capture by the enemy military forces). 230 Military medical andreligious personnel, however, may employ arms in self-defense or in defense of their patientsagainst unlawful attacks. 231

226 Refer to 4.13 (Auxiliary Medical Personnel); 4.5.2.2 (Members Trained as Medical Personnel, but NotAttached to the Medical Service).227 See LEVIE, POWS 74 (But what of the physician in the power of the enemy who, perhaps for some ideologicalreason, refuses to perform any professional duties and will not provide medical treatment for the sick and woundedmembers of the armed forces of his own Power of Origin? This was the procedure followed by most of the NorthVietnamese medical personnel captured in Vietnam. The South Vietnamese responded by treating them as ordinaryprisoners of war. Once again, there was probably no specific legal basis for such action; but certainly, if a memberof the medical profession refuses to employ his professional abilities, even for the benefit of his own countrymen, heis denying his professional status and, under those circumstances, there is little that a Detaining Power can do exceptto remove him from the category of a retained person and to place him in a general prisoner-of-war status (unless hisrecalcitrance is to be rewarded by repatriation).).228 Refer to 7.8.2 (Meaning of Respect and Protection of Medical and Religious Personnel).229 Refer to 7.8.2.1 (Incidental Harm Not Prohibited).230 Refer to 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).231 Refer to 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).

133 Military medical and religious personnel who take actions outside their role as militarymedical and religious personnel forfeit the corresponding protections of their special status andmay be treated as combatants or auxiliary medical personnel, as appropriate. 232

4.10.2 Military Medical and Religious Personnel - Detention. If military medical andreligious personnel fall into the power of the enemy during international armed conflict, they arenot held as POWs, but instead are held as retained personnel. 233 They should present theiridentity cards to demonstrate their status as retained personnel. 234 They are retained so that theymay fulfill their humanitarian duties to care for, or minister to, POWs. 235

Although they are not held as POWs, military medical and religious personnel receive, ata minimum, the protections of POW status. 236 In addition, retained personnel shall be granted allfacilities necessary to provide for the medical care of, and religious ministration to, POWs. 237For example, retained personnel may not be compelled to carry out any work other than thatconcerned with their medical or religious duties. 238 Retained personnel shall be authorized tovisit periodically POWs situated in working detachments or in hospitals outside the camp. 239Retained personnel, through their senior officer in each camp, have the right to deal with thecompetent authorities of the camp on all questions relating to their duties. 240

If they are not needed to care for, or minister to, POWs, and if military requirementspermit, retained personnel should be returned to the forces to which they belong so that they maycontinue to care for, or minister to, members of their armed forces. 241 The parties to the conflictwould establish special agreements to establish the procedures for repatriation. 242

4.11 AUTHORIZED STAFF OF VOLUNTARY AID SOCIETIES

States may choose to employ the staff of National Red Cross Societies and that of otherVoluntary Aid Societies, like military medical and religious personnel. If States subject suchstaff to military laws and regulations, then such personnel are to be treated like military medical

232 Refer to 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).233 Refer to 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).234 Refer to 7.9.2 (Use of Identification Card to Help Establish Retained Personnel Status).235 Refer to 7.9.3 (Duties of Retained Personnel).236 Refer to 7.9.5.1 (POW Treatment as a Minimum).237 Refer to 7.9.5.2 (All Facilities Necessary to Provide for the Medical Care of, and Religious Ministration to,POWs).238 Refer to 7.9.5.6 (No Other Compulsory Duties).239 Refer to 7.9.5.3 (Visits of POWs Outside the Camp).240 Refer to 7.9.5.7 (Senior Medical Officer in the Camp).241 Refer to 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable).242 Refer to 7.9.4.3 (Special Agreements on the Percentage of Personnel to Be Retained); 7.9.5.8 (Agreements onPossible Relief of Retained Personnel).

134and religious personnel. 243 States must notify other Parties to the 1949 Geneva Conventionsbefore actually employing such personnel. 244

4.11.1 American National Red Cross. Under U.S. law, the American National Red Crossis a voluntary aid society authorized to support the U.S. armed forces in time of war. 245American National Red Cross personnel who support the U.S. armed forces in militaryoperations in this way are subject to the Uniform Code of Military Justice. 246

4.12 STAFF OF A RECOGNIZED AID SOCIETY OF A NEUTRAL COUNTRY

The 1949 Geneva Conventions recognize that neutral States may lend their recognizedaid societies to a party to the conflict by placing those personnel and units under the control ofthat party to the conflict. 247 The neutral Government shall notify this consent to the adversary ofthe State that accepts such assistance, and the party to a conflict that accepts such assistance mustnotify enemy States before using it. 248 This assistance is not considered as interference in theconflict by the neutral State. 249

The staff of a recognized aid society of a neutral country who have been lent to a party tothe conflict must be furnished with an identity card similar to that provided to retained personnelbefore leaving their neutral State. 250 Such personnel who have fallen into the hands of the

243 See GWS art. 26 (The staff of National Red Cross Societies and that of other Voluntary Aid Societies, dulyrecognized and authorized by their Governments, who may be employed on the same duties as the personnel namedin Article 24, are placed on the same footing as the personnel named in the said Article, provided that the staff ofsuch societies are subject to military laws and regulations.).244 See GWS art. 26 (Each High Contracting Party shall notify to the other, either in time of peace or at thecommencement of or during hostilities, but in any case before actually employing them, the names of the societieswhich it has authorized, under its responsibility, to render assistance to the regular medical service of its armedforces.).245 See 36 U.S.C. 300102 (the purposes of the American National Red Cross include to provide volunteer aid intime of war to the sick and wounded of the Armed Forces, in accordance with the spirit and conditions of thetreaties of Geneva, August 22, 1864, July 27, 1929, and August 12, 1949 and to perform all the duties devolved ona national society by each nation that has acceded to any of those treaties, conventions, or protocols).246 Refer to 18.19.3.1 (Uniform Code of Military Justice Offenses).247 GWS art. 27 (A recognized Society of a neutral country can only lend the assistance of its medical personneland units to a Party to the conflict with the previous consent of its own Government and the authorization of theParty to the conflict concerned. That personnel and those units shall be placed under the control of that Party to theconflict.).248 GWS art. 27 (The neutral Government shall notify this consent to the adversary of the State which accepts suchassistance. The Party to the conflict who accepts such assistance is bound to notify the adverse Party thereof beforemaking any use of it.).249 GWS art. 27 (In no circumstances shall this assistance be considered as interference in the conflict.).250 GWS art. 27 (The members of the personnel named in the first paragraph shall be duly furnished with theidentity cards provided for in Article 40 before leaving the neutral country to which they belong.); GWS art. 40(giving requirements with regard to the identification of [t]he personnel designated in Article 24 and in Articles 26and 27).

135adverse party may not be detained. 251 Unless otherwise agreed, such personnel shall havepermission to return to their country, or if this is not possible, to the territory of the party to theconflict in whose service they were, as soon as a route for their return is open and militaryconsiderations permit. 252 Pending their release, such personnel shall continue their work underthe direction of the adverse party; they shall preferably be engaged in the care of the woundedand sick of the party to the conflict in whose service they were. 253 On their departure, they shalltake with them their effects, personal articles and valuables and the instruments, arms, and ifpossible, the means of transport belonging to them. 254

Such personnel, while in the power of a party to the conflict, should be treated on thesame basis as corresponding personnel of the armed forces of that party to the conflict; food inparticular must be sufficient as regards quantity, quality, and variety to keep them in a normalstate of health. 255 They may also fly their national flag. 256

4.13 AUXILIARY MEDICAL PERSONNEL

Auxiliary medical personnel are members of the armed forces specially trained foremployment, should the need arise, as hospital orderlies, nurses, or auxiliary stretcher-bearers, inthe search for or the collection, transport, or treatment of the wounded and sick in internationalarmed conflict. 257 In general, auxiliary medical personnel are treated like combatants; however,while carrying out medical duties, they must distinguish themselves by wearing a white armletbearing the distinctive sign (e.g., the red cross), and they may not be made the object of attack.

251 GWS art. 32 (Persons designated in Article 27 who have fallen into the hands of the adverse Party may not bedetained.).252 GWS art. 32 (Unless otherwise agreed, they shall have permission to return to their country, or if this is notpossible, to the territory of the Party to the conflict in whose service they were, as soon as a route for their return isopen and military considerations permit.).253 GWS art. 32 (Pending their release, they shall continue their work under the direction of the adverse Party; theyshall preferably be engaged in the care of the wounded and sick of the Party to the conflict in whose service theywere.).254 GWS art. 32 (On their departure, they shall take with them their effects, personal articles and valuables and theinstruments, arms and if possible the means of transport belonging to them.).255 GWS art. 32 (The Parties to the conflict shall secure to this personnel, while in their power, the same food,lodging, allowances and pay as are granted to the corresponding personnel of their armed forces. The food shall inany case be sufficient as regards quantity, quality and variety to keep the said personnel in a normal state ofhealth.).256 GWS art. 43 (The medical units belonging to neutral countries, which may have been authorized to lend theirservices to a belligerent under the conditions laid down in Article 27, shall fly, along with the flag of theConvention, the national flag of that belligerent, wherever the latter makes use of the faculty conferred on him byArticle 42. Subject to orders to the contrary by the responsible military authorities, they may on all occasions flytheir national flag, even if they fall into the hands of the adverse Party.).257 GWS art. 25 (Members of the armed forces specially trained for employment, should the need arise, as hospitalorderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of thewounded and sick shall likewise be respected and protected if they are carrying out these duties at the time whenthey come into contact with the enemy or fall into his hands.).

136 4.13.1 Auxiliary Medical Personnel U.S. Armed Forces. The recent practice of theUnited States has not been to employ persons as auxiliary medical personnel. Rather, the U.S.armed forces have employed military medical and religious personnel. 258 In addition, the U.S.armed forces have given members of the armed forces additional training in combat medicine buthave not designated them as military medical personnel or as auxiliary medical personnel. 259Thus, such personnel have not worn the distinctive emblem while engaging in medical duties,and they may be made the object of attack by the enemy.

Although the recent practice of the United States has not been to employ persons asauxiliary medical personnel, the United States may later decide to employ auxiliary medicalpersonnel, and enemy military forces may employ such personnel. Moreover, certain membersof the medical corps, who do not qualify as military medical personnel because they performduties inconsistent with exclusive medical status, may be treated like auxiliary medicalpersonnel. 260

4.13.2 Acquiring Auxiliary Medical Status. As with military medical and religiousstatus, members of the armed forces do not acquire auxiliary medical status simply byperforming medical duties. 261 For example, a combatant who treats fellow combatants on thebattlefield does not automatically acquire auxiliary medical status. Similarly, persons do notacquire auxiliary medical status only because they happen to have medical training.

In order to acquire auxiliary medical status, a person must receive appropriate trainingand be designated as such by his or her armed forces. 262 Those armed forces must provideproper identification to such persons, including an armband and a special identity document. 263

personnel may not be made the object of attack when carrying out their medical duties. 264

258 Refer to 4.9 (Military Medical and Religious Personnel).259 Refer to 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service).260 See, e.g., W. Hays Parks, Status of Certain Medical Corps and Medical Service Corps Officers under the GenevaConventions, reprinted in THE ARMY LAWYER 5 (8) (Apr. 1989) (U.S. Army MSC officers, AMEDDnoncommissioned officers, or other Medical Corps personnel serving in positions that do not meet the exclusivelyengaged criteria of article 24 are not entitled to its protection but, under article 25 are entitled to protection fromintentional attack during those times in which they are performing medical support functions.).261 Refer to 4.9.2 (Requirements for Military Medical and Religious Status).262 GWS COMMENTARY 222 (To be accorded immunity, auxiliary personnel must, as we have said, have receivedspecial medical training beforehand, the nature and duration of which are wisely not defined. If it is necessary tomake good a deficiency in permanent personnel, such training may even take place in wartime; but personnel fillingthis temporary role must in any case have had a real training.).263 GWS COMMENTARY 223-24 (To have immunity even on the battlefield, military personnel caring for thewounded had to form a distinct categorythat of medical personneland enjoy a separate status, recognizable by adistinctive emblem and an identity card. If recourse was had to such safeguards, it was because militaryconsiderations demanded them. Otherwise the risk of abuse would have been too great. It is not straining theimagination to picture combatants approaching an enemy position, ostensibly to assist the wounded, and thenopening fire in order to seize it: similarly, a fighting unit might suddenly transform itself into a medical unit, inorder to avoid enemy fire.).

137Auxiliary medical personnel shall wear, but only while carrying out medical duties, a whitearmlet bearing in its center the distinctive sign in miniature; the armlet shall be issued andstamped by the military authority. 265 In addition, auxiliary medical personnel must abstain fromacts harmful to the enemy while carrying out their medical duties. 266

When the above conditions are not present, auxiliary medical personnel may be made theobject of attack on the same basis as other combatants.

4.13.4 Auxiliary Medical Personnel Detention. Auxiliary medical personnel are POWswhen detained by the enemy during international armed conflict, but may be required to performtheir medical duties, as needed. 267 Auxiliary medical personnel are not subject to the repatriationprovisions that apply specifically to retained personnel. 268

4.14 PERSONNEL ENGAGED IN DUTIES RELATED TO THE PROTECTION OF CULTURAL PROPERTY

During armed conflict, different classes of persons may be engaged in duties related tothe protection of cultural property. These classes of persons may include: specialist personnel inthe armed forces, armed custodians specially empowered to guard cultural property, as well aspersons who are engaged in duties of control in accordance with the Regulations for theExecution of the 1954 Hague Cultural Property Convention. So far as consistent with theinterests of security, such personnel should be respected and permitted to carry out their dutiesfor the protection of cultural property.

4.14.1 Personnel Engaged in the Protection of Cultural Property. As far as is consistent

with the interests of security, personnel engaged in the protection of cultural property shall, inthe interests of such property, be respected and, if they fall into the hands of the opposing party,shall be allowed to continue to carry out duties whenever the cultural property for which they areresponsible has also fallen into the hands of the opposing party. 269 Such personnel are analogousto military medical and religious personnel who also shall continue to carry out their medical andspiritual duties when they have fallen into the hands of the enemy. 270

264 Refer to 7.8.1 (Categories of Persons Who Are Entitled to Respect and Protection as Medical and ReligiousPersonnel on the Battlefield).265 Refer to 7.8.4.2 (Wearing of Armlet With Miniature Distinctive Emblem).266 Refer to 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).267 See GWS art. 29 (Members of the personnel designated in Article 25 who have fallen into the hands of theenemy, shall be prisoners of war, but shall be employed on their medical duties in so far as the need arises.).268 Refer to 4.10.2 (Military Medical and Religious Personnel - Detention).269 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 15 (As far as is consistent with the interests of security,personnel engaged in the protection of cultural property shall, in the interests of such property, be respected and, ifthey fall into the hands of the opposing Party, shall be allowed to continue to carry out duties whenever the culturalproperty for which they are responsible has also fallen into the hands of the opposing Party.); ROERICH PACT art. 1(requiring respect and protection for personnel of [t]he historic monuments, museums, scientific, artistic,educational and cultural institutions).270 Refer to 7.9.3 (Duties of Retained Personnel).

138 No special agreement may be concluded that would diminish the protection afforded bythe 1954 Hague Cultural Property Convention to the personnel engaged in the protection ofcultural property. 271

the 1954 Hague Cultural Property Convention, may have within their armed forces, services orspecialist personnel whose purpose is to secure respect for cultural property and to cooperatewith the civilian authorities responsible for safeguarding it. 272 The United States has long hadsuch personnel in its armed forces. 273

For example, during World War II, Allied forces dedicated a specific group of personnelwho were tasked to save as much of the culture of Europe as they could during combat. 274 Thesepersonnel worked to mitigate combat damage to churches and museums and to locate moveableworks of art that were stolen or missing. 275

States may use armed custodians who are specially empowered to protect cultural property. Theguarding of cultural property under special protection by armed custodians specially empoweredto do so, however, shall not be deemed to be a use for military purposes that would deprivecultural property of special protection. 276

4.14.2 Persons Responsible for the Duties of Control in Accordance With the Regulationsfor the Execution of the 1954 Hague Cultural Property Convention. A number of persons areresponsible for the duties of control in accordance with the Regulations for the Execution of the

271 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 24(2) (No special agreement may be concluded whichwould diminish the protection afforded by the present Convention to cultural property and to the personnel engagedin its protection.).272 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(2) (The High Contracting Parties undertake to plan orestablish in peacetime, within their armed forces, services or specialist personnel whose purpose will be to securerespect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it.).273 Section-by-Section Analysis of Provisions, 4, Tab 1 to Strobe Talbot, Letter of Submittal, May 12, 1998,MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954 HAGUE CULTURAL PROPERTY CONVENTION 5 (It islongstanding U.S. Army practice to maintain such personnel in their civil affairs reserve force. Marine Corpsreserve civil affairs personnel receive training to perform similar functions if necessary.).274 R. M. EDSEL, THE MONUMENTS MEN 2 (2009) (The Monuments Men were a group of men and women fromthirteen nations, most of whom volunteered for service in the newly created Monuments, Fine Arts, and Archivessection [of the Western Allied military effort], or MFAA. Most of the early volunteers had expertise as museumdirectors, curators, art scholars and educators, artists, architects, and archivists. Their job was simple: to save asmuch of the culture of Europe as they could during combat. The creation of the MFAA section was a remarkableexperiment. It marked the first time an army fought a war while comprehensively attempting to mitigate culturaldamage, and was performed without adequate transportation, supplies, personnel, or historical precedent. The mentasked with this mission were, on the surface, the most unlikely of heroes.).275 R. M. EDSEL, THE MONUMENTS MEN xiv (2009) (Their initial responsibility was to mitigate combat damage,primarily to structures churches, museums, and other important monuments. As the war progressed and theGerman border was breached, their focus shifted to locating moveable works of art and other cultural items stolen orotherwise missing.).276 Refer to 5.18.8.2 (Conditions for the Granting of Special Protection No Use for Military Purposes).

1391954 Hague Cultural Property Convention. These individuals may include: (1) the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO); (2)a State-appointed representative for cultural property; (3) delegates of the Protecting Powers; (4)a Commissioner-General for Cultural Property; and (5) inspectors and experts proposed by theCommissioner-General for Cultural Property.

The Commissioners-General for Cultural Property, delegates of the Protecting Powers,

inspectors, and experts shall in no case exceed their mandates. In particular, they shall takeaccount of the security needs of the Party to the 1954 Hague Cultural Property Convention towhich they are accredited and shall in all circumstances act in accordance with the requirementsof the military situation as communicated to them by that State. 277

4.14.2.1 Director-General of UNESCO. Under the 1954 Hague Cultural Property

Convention, the Director-General of the United Nations Educational, Scientific, and CulturalOrganization (UNESCO) plays an important role. For example, among other duties, theDirector-General compiles and periodically revises an international list consisting of all personsnominated by participating States as qualified to carry out the functions of Commissioner-General for Cultural Property. 278

4.14.2.2 State-Appointed Representative for Cultural Property. As soon as any

Party to the 1954 Hague Cultural Property Convention is engaged in an international armedconflict, that Party shall appoint a representative for cultural property situated in its territory; ifthat Party is in occupation of another territory, it shall appoint a special representative forcultural property situated in that territory. 279

4.14.2.3 Delegates of the Protecting Powers. A Protecting Power shall appoint

delegates to perform certain functions in the protection of cultural property. 280 The delegates of

277 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8 (TheCommissioners-General for Cultural Property, delegates of the Protecting Powers, inspectors and experts shall in nocase exceed their mandates. In particular, they shall take account of the security needs of the High Contracting Partyto which they are accredited and shall in all circumstances act in accordance with the requirements of the militarysituation as communicated to them by that High Contracting Party.).278 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1 (On the entryinto force of the Convention, the Director-General of the United Nations Educational, Scientific and CulturalOrganization shall compile an international list consisting of all persons nominated by the High Contracting Partiesas qualified to carry out the functions of Commissioner-General for Cultural Property. On the initiative of theDirector-General of the United Nations Educational, Scientific and Cultural Organization, this list shall beperiodically revised on the basis of requests formulated by the High Contracting Parties.).279 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (As soon asany High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (a) Itshall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, itshall appoint a special representative for cultural property situated in that territory;).280 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (As soon asany High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (b) TheProtecting Power acting for each of the Parties in conflict with such High Contracting Party shall appoint delegatesaccredited to the latter in conformity with Article 3 below;); REGULATIONS FOR THE EXECUTION OF THE 1954HAGUE CULTURAL PROPERTY CONVENTION art. 3 (The Protecting Power shall appoint its delegates from among the

140the Protecting Powers shall take note of violations of the 1954 Hague Cultural PropertyConvention, investigate, with the approval of the Party to which they are accredited, thecircumstances in which they have occurred, make representations locally to secure theircessation, and, if necessary, notify the Commissioner-General of such violations. They shallkeep the Commissioner-General informed of their activities. 281

4.14.2.4 Commissioner-General for Cultural Property. The Regulations for the

Execution of the 1954 Hague Cultural Property Convention provide for the appointment of aCommissioner-General for cultural property, but always with the approval of the Party to whichhe or she will be accredited. 282

The Commissioner-General exercises a number of functions, including proposing the

appointment of inspectors and experts, ordering an investigation with the agreement of the Partyto which he or she is accredited, and drawing up reports on the application of the Convention. 283

4.14.2.5 Inspectors and Experts Proposed by the Commissioner-General for

Cultural Property. The Commissioner-General for Cultural Property may propose, for theapproval of the Party to which the Commissioner-General is accredited, inspectors of culturalproperty to be charged with specific missions. 284 The Commissioner-General, delegates, and

members of its diplomatic or consular staff or, with the approval of the Party to which they will be accredited, fromamong other persons.).281 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5 (Thedelegates of the Protecting Powers shall take note of violations of the Convention, investigate, with the approval ofthe Party to which they are accredited, the circumstances in which they have occurred, make representations locallyto secure their cessation and, if necessary, notify the Commissioner-General of such violations. They shall keep himinformed of their activities.).282 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4 (1. TheCommissioner-General for Cultural Property shall be chosen from the international list of persons by jointagreement between the Party to which he will be accredited and the Protecting Powers acting on behalf of theopposing Parties. 2. Should the Parties fail to reach agreement within three weeks from the beginning of theirdiscussions on this point, they shall request the President of the International Court of Justice to appoint theCommissioner-General, who shall not take up his duties until the Party to which he is accredited has approved hisappointment.).283 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 6 (1. TheCommissioner-General for Cultural Property shall deal with all matters referred to him in connexion with theapplication of the Convention, in conjunction with the representative of the Party to which he is accredited and withthe delegates concerned. 2. He shall have powers of decision and appointment in the cases specified in the presentRegulations. 3. With the agreement of the Party to which he is accredited, he shall have the right to order aninvestigation or to, conduct it himself. 4. He shall make any representations to the Parties to the conflict or to theirProtecting Powers which he deems useful for the application of the Convention. 5. He shall draw up such reports asmay be necessary on the application of the Convention and communicate them to the Parties concerned and to theirProtecting Powers. He shall send copies to the Director-General of the United Nations Educational, Scientific andCultural Organization, who may make use only of their technical contents. 6. If there is no Protecting Power, theCommissioner-General shall exercise the functions of the Protecting Power as laid down in Articles 21 and 22 of theConvention.).284 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(1)(Whenever the Commissioner-General for Cultural Property considers it necessary, either at the request of thedelegates concerned or after consultation with them, he shall propose, for the approval of the Party to which he is

141inspectors may have recourse to the services of experts, who will also be proposed for theapproval of the Party to which the Commissioner-General is accredited. 285

In some cases, inspectors may be entrusted with the functions of delegates of theProtecting Powers. 286

4.14.3 Identifying Personnel Engaged in Duties for the Protection of Cultural Property.Persons responsible for duties of control in accordance with the Regulations for the Execution ofthe 1954 Hague Cultural Property Convention, and persons engaged in duties for the protectionof cultural property, are to carry a special identity card bearing the distinctive emblem. 287 Inaddition, such persons may wear an armlet bearing the distinctive emblem issued and stamped bythe competent authorities. 288

Such persons may not, without legitimate reason, be deprived of their identity card or ofthe right to wear the armlet. 289 The distinctive emblem displayed on an armlet or special identitycard is to be displayed once (as opposed to repeated three times). 290

4.15 PERSONS AUTHORIZED TO ACCOMPANY THE ARMED FORCES

Under the law of war, persons who are not members of the armed forces, but areauthorized to accompany them, fall into a special category. Although they are often referred toas civilians because they are not military personnel, they differ materially from the civilian

accredited, an inspector of cultural property to be charged with a specific mission. An inspector shall be responsibleonly to the Commissioner-General.).285 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(2) (TheCommissioner-General, delegates and inspectors may have recourse to the services of experts, who will also beproposed for the approval of the Party mentioned in the preceding paragraph.).286 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 9 (If a Party tothe conflict does not benefit or ceases to benefit from the activities of a Protecting Power, a neutral State may beasked to undertake those functions of a Protecting Power which concern the appointment of a Commissioner-General for Cultural Property in accordance with the procedure laid down in Article 4 above. The Commissioner-General thus appointed shall, if need be, entrust to inspectors the functions of delegates of Protecting Powers asspecified in the present Regulations.).287 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(2) ([Thepersons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention] shall carry a special identity cardbearing the distinctive emblem. This card shall mention at least the surname and first names, the date of birth, thetitle or rank, and the function of the holder. The card shall bear the photograph of the holder as well as his signatureor his fingerprints, or both. It shall bear the embossed stamp of the competent authorities.).288 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(1) (Thepersons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention may wear an armlet bearing thedistinctive emblem, issued and stamped by the competent authorities.).289 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(4) (The saidpersons may not, without legitimate reason, be deprived of their identity card or of the right to wear the armlet.).290 Refer to 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property Once Versus Three Times).

142population because these persons are authorized and in some cases, are ordered toaccompany military forces into a theater of operations to support the force. 291

DoD policies have often addressed the use of non-military personnel to support militaryoperations. 292

Persons authorized to accompany the armed forces may not be made the object of attackunless they take direct part in hostilities. They may, however, be detained by enemy militaryforces, and are entitled to POW status if they fall into the power of the enemy duringinternational armed conflict. They have legal immunity from the enemys domestic law forproviding authorized support services to the armed forces.

4.15.1 Persons Authorized to Accompany the Armed Forces Notes on Terminology. In

the past, the category of persons who accompany or follow the armed forces has referred tojournalists, private clergy, and sutlers, 293 who traditionally were subject to the jurisdiction of thearmy that they accompanied. 294 These persons, to the extent that they were simply following thearmed forces for their own purposes and not to provide support to military operations, were291 Christian Damson (United States) v. Germany, 7 REPORTS OF THE INTERNATIONAL ARBITRAL AWARDS 184, 198(1925) (concluding that a non-military employee of the U.S. Government whose activities were directly infurtherance of a military operation was not a civilian for the purposes of the Treaty of Berlin and thus was notentitled to assert a claim under the provisions of the Treaty of Berlin that provided for Germany to compensate fordamages to the civilian population that it caused during World War I); Arthur Ellt Hungerford (United States) v.Germany, 7 REPORTS OF THE INTERNATIONAL ARBITRAL AWARDS 368, 371 (1926) (From the foregoing it isapparent that the members of the Y.M.C.A. who served on the western front were, in the language of theCommander-in-Chief of the A.E.F., militarized and *** under the control and supervision of the American militaryauthorities. Or, to use the language of their own spokesman, they were a part of the military machine. Theyrendered military service of a high order. The mere fact that they were not formally inducted into the Army or werenot in the pay of the Government of the United States is immaterial so far as concerns the question here presented.They had voluntarily segregated themselves from the civilian population as that term is used in the Treaty ofBerlin. They had deliberately exposed themselves and their personal belongings to the risks of war which began atthe port of embarkation. The provisions of the Treaty of Berlin obligating Germany to make compensation fordamages to civilians or to civilian victims or to the civilian population were manifestly intended to apply to thepassive victims of warfare, not to those who entered the war zone, subjected themselves to risks to which membersof the civilian population generally were immune, and participated in military activities, whether as combatants ornoncombatants.).292 For example, DOD INSTRUCTION 3020.41, Operational Contract Support (OCS) (Dec. 20, 2011); DODINSTRUCTION 1100.22, Policies and Procedures for Determining Workforce Mix (Apr. 12, 2010); DOD DIRECTIVE1404.10, DoD Civilian Expeditionary Workforce (Jan. 23, 2009); DOD INSTRUCTION 1400.32, DoD Civilian WorkForce Contingency and Emergency Planning Guidelines and Procedures (Apr. 24, 1995); DOD DIRECTIVE 1404.10,Emergency-Essential DoD U.S. Civilian Employees (Apr. 10, 1992); DOD INSTRUCTION 3020.37, Continuation ofEssential DoD Contractor Services During Crises (Nov. 6, 1990 Incorporating Change 1, Jan. 26, 1996).293 Sutler is an old term for a civilian provisioner to the army, whether in garrison or in the field.294 For example, Articles of War, art. 2(d), Jun. 4, 1920, 41 STAT. 759, 787 (All retainers to the camp and allpersons accompanying or servicing with the armies of the United States without the territorial jurisdiction of theUnited States, and in time of war all such retainers and persons accompanying or serving with the armies of theUnited States in the field, both within and without the territorial jurisdiction of the United States, though nototherwise subject to these articles); American Articles of War of 1775, art. 32, Jun. 30, 1775, reprinted inWINTHROP, MILITARY LAW & PRECEDENTS 953 (All suttlers and retailers to a camp, and all persons whatsoever,serving with the continental army in the field, though not in-listed soldiers, are to be subject to the articles, rules, andregulations of the continental army.).

143subject to detention, not as POWs, but like civilians, only if specifically necessary. 295 On theother hand, non-military persons who were serving the armed forces, such as civilian employeesof the war department, were detained as POWs. 296

Article 4A(4) of the GPW reflects the modern practice and rule. 297 Persons authorized toaccompany the armed forces under Article 4A(4) include employees of the Department ofDefense, employees of other government agencies sent to support the armed forces, and otherauthorized persons working on government contracts to support the armed forces. DoD practicehas been to permit a broad range of civilians to be authorized to accompany U.S. forces. 298

Persons authorized to accompany the armed forces are often referred to, and treated as,civilians, since they are not members of the armed forces. However, as discussed below,persons authorized to accompany the armed forces are also treated like combatants in somerespects.

The rules relating to the conduct of hostilities for persons authorized to accompany the armedforces are similar in some respects to the rules relating to military medical and religiouspersonnel. For example, persons in both classes: (1) generally may not be made the object of

295 WINTHROP, MILITARY LAW & PRECEDENTS 789 (Camp-followers, including members of soldiers families,sutlers, contractors, newspaper correspondents, and others allowed with the army but not in the public employment,should, when taken, be treated similarly as prisoners of war, but should be held only so long as may be necessary.)(emphasis added).296 See, e.g., SPAIGHT, WAR RIGHTS ON LAND 304 ([W]hat persons may be made prisoner of war includespersons not commissioned or enlisted, but employed permanently by an army as pay-clerks, telegraph-operators,engine drivers, or, generally, in any civilian capacity with an army in the field.); WINTHROP, MILITARY LAW &PRECEDENTS 789 (The class of persons entitled upon capture to the privileges of prisoners of war comprisesmembers of the enemys armies, embracing both combatants and non-combatants, and the wounded and sick takenon the field and in hospital. It should comprise also civil persons engaged in military duty or in immediateconnection with an army, such as clerks, telegraphists, aeronauts, teamsters, laborers, messengers, guides, scouts,and men employed on transports and military railwaysthe class indeed of civilians in the employment and serviceof the government such as are specified in our 63d Article of War as Persons serving with the armies in thefield.).297 See GPW COMMENTARY 64 (The Conference of Government Experts considered that the text of Article 81 ofthe 1929 Convention had become obsolete (in particular the word sutlers is no longer appropriate) and shouldinclude a reference to certain other classes of persons who were more or less part of the armed forces and whoseposition when captured had given rise to difficulties during the Second World War. The list given is only by way ofindication, however, and the text could therefore cover other categories of persons or services who might be calledupon, in similar conditions, to follow the armed forces during any future conflict.).298 For example, FINAL REPORT ON THE PERSIAN GULF WAR 599 (In Operations Desert Shield and Desert Storm,the United States employed civilians both as career civil service employees and indirectly as contractor employees.Civilians performed as part of the transportation system, at the forward depot level repair and intermediate levelmaintenance activities and as weapon systems technical representatives. Civilians worked aboard Navy ships, at AirForce (USAF) bases, and with virtually every Army unit. Only the Marine Corps (USMC) did not employsignificant numbers of civilians in theater. This civilian expertise was invaluable and contributed directly to thesuccess achieved.).

144attack; (2) must accept the risk of incidental harm from enemy military operations; and (3) havethe right of self-defense against unlawful attacks. 299

4.15.2.1 Liability to Being Made the Object of Attack. For the purposes ofdetermining whether they may be made the object of attack, persons authorized to accompanythe armed forces are treated as civilians. They may not be made the object of attack unless theytake direct part in hostilities. 300

4.15.2.2 Employment in Hostilities. The law of war does not prohibit personsauthorized to accompany the armed forces from providing authorized support that constitutestaking direct part in hostilities. Even if the authorized support that they provide constitutestaking a direct part in hostilities, such persons retain their entitlement to POW status underArticle 4A(4) of the GPW. 301 Although international law does not prohibit States from usingpersons authorized to accompany the armed forces to provide support that constitutes directparticipation in hostilities, commanders should exercise care in placing such personnel insituations in which an attacking enemy may consider their activities to constitute taking a directpart in hostilities, as there may be legal and policy considerations against such use.

Commanders may not employ persons authorized to accompany the armed forces toperform duties and functions traditionally performed by a military person if such action is takenfor the purpose of shielding a military objective from attack. 302

armed forces should expect that they have an increased risk of death or injury incidental to anenemy attack because of their proximity to military operations and military objectives. 303 Forexample, they should expect that they might be incidentally injured in an attack against the forcethat they accompany. Similarly, in some cases, the location at which they are serving may itselfbe a military objective. 304 Furthermore, in some cases, an enemy could reasonably conclude thatthe mere presence of a person at a location (e.g., a remote military base) indicates that they are acombatant or are directly participating in hostilities, and therefore could lawfully be made theobject of attack.

4.15.2.4 Self-Defense and Arming. Persons authorized to accompany the armed

forces have a right of self-defense against unlawful attacks, such as attacks by bandits. Personsauthorized to accompany the armed forces should not resist capture by enemy military forceswhom they expect to respect their status under the law of war. If persons authorized toaccompany the armed forces make any resistance to enemy military forces, then they may be

299 Refer to 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities).300 Refer to 5.9 (Civilians Taking a Direct Part in Hostilities).301 Refer to 4.15.4 (Persons Authorized to Accompany the Armed Forces Liability Under Domestic Law forParticipation in Hostilities).302 Refer to 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede MilitaryOperations).303 Refer to 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives).304 Refer to 5.7.8.4 (Examples of Military Objectives Places of Military Significance).

145regarded as taking a direct part in hostilities, and may be made the object of attack. 305 Theirresistance to capture by enemy military forces whom they expect to respect their status under thelaw of war would be incompatible with the principle that a person may not claim the distinctrights of both combatants and civilians at the same time. 306

The arming of persons authorized to accompany the armed forces is analogous to thearming of military medical and religious personnel. 307 DoD practice has been to permitcommanders to authorize persons authorized to accompany the armed forces to carry defensiveweapons if necessary. 308

A State may decide to arm persons authorized to accompany the armed forces forpersonal security and self-defense purposes without incorporating them into the armed forces orotherwise authorizing them to act as a combatant.

4.15.2.5 Wearing of Uniform. The law of war does not prohibit personsauthorized to accompany the armed forces from wearing a uniform, including the uniform ofarmed forces that they accompany. Recent U.S. practice, however, has been to ensure thatpersons accompanying U.S. forces wear clothing that distinguishes them from members of thearmed forces in order to prevent confusion about their status. 309

Persons who wear a military uniform accept the risk of being made the object of attack byenemy forces, as the enemy would reasonably believe them to be lawful objects of attack.However, the mere wearing of a uniform or being authorized by a State to wear a uniform doesnot necessarily authorize that person to act as a combatant.

4.15.2.6 Provision of Security Services. Persons authorized to accompany the

armed forces who provide security against criminal elements generally would not be viewed as

305 Refer to 5.9.3.1 (Examples of Taking a Direct Part in Hostilities).306 Refer to 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at theSame Time).307 Refer to 7.10.3.4 (Arming of Military Medical Units or Facilities).308 See DOD INSTRUCTION 1100.22, Policy and Procedures for Determining Workforce Mix, E-5 2.d.(5)(a) (Apr.12, 2010) (It is not a violation of the law of war for DoD civilians and Defense contractor employees who areauthorized to accompany the armed forces in the field during hostilities to be issued a weapon on the authority of theCombatant Commander for individual self-defense as addressed in References (n), (o), and (t).); DOD INSTRUCTION3020.41, Operational Contract Support (OCS), E-2 4.e (Dec. 20, 2011) (describing policy procedures for issuingweapons to contingency contractor personnel).309 DOD INSTRUCTION 3020.41, Operational Contract Support (OCS), E-2 3.j (Dec. 20, 2011) (Defensecontractors or their personnel are responsible for providing their own personal clothing, including casual andworking clothing required by the assignment. Generally, commanders shall not issue military clothing to contractorpersonnel or allow the wearing of military or military look-alike uniforms. However, a CCDR [CombatantCommander] or subordinate JFC [Joint Force Commander] deployed forward may authorize contractor personnel towear standard uniform items for operational reasons. Contracts shall require that this authorization be in writing andmaintained in the possession of authorized contractor personnel at all times. When commanders issue any type ofstandard uniform item to contractor personnel, care must be taken to ensure, consistent with force protectionmeasures, that contractor personnel are distinguishable from military personnel through the use of distinctivepatches, arm bands, nametags, or headgear.).

146taking a direct part in hostilities (and do not forfeit their protection from being made the object ofattack). 310 However, providing such services to defend against enemy armed forces of a Statewould be regarded as taking a direct part in hostilities (and would forfeit their protection frombeing made the object of attack). 311

DoD policies have addressed the use of non-military personnel to provide securityservices for DoD components. 312 Where there has been a significant risk of attack by enemyarmed forces of a State, DoD practice generally has been to use military personnel to providesecurity.

4.15.3 Persons Authorized to Accompany the Armed Forces Detention. For thepurposes of detention, persons authorized to accompany the armed forces are treated likecombatants. These persons may be detained by the enemy and are entitled to POW status duringinternational armed conflict. 313

When held as POWs, persons authorized to accompany the armed forces are to receiveadvance of pay from the Detaining Power, and they should be assigned equivalent ranks to thoseof members of the armed forces for this purpose. 314

Persons who are authorized to accompany the armed forces must be issued an identitycard to confirm their status. 315 Presenting the identification card is not a prerequisite for POWstatus, but it helps captured persons establish to enemy forces that they are entitled to POWstatus. 316

310 Compare 4.23.1 (Police as Civilians).311 Refer to 5.9.3.1 (Examples of Taking a Direct Part in Hostilities).312 For example, DOD INSTRUCTION 3020.50, Private Security Contractors Operating in Contingency Operations,Humanitarian or Peace Operations, or Other Military Operations or Exercises (Jul. 22, 2009, Incorporating Change1, Aug. 1, 2011).313 See GPW art. 4(A)(4) (defining prisoners of war, in the sense of the present Convention, to include personswho have fallen into the power of the enemy and who accompany the armed forces without actually beingmembers thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors,members of labour units or of services responsible for the welfare of the armed forces, provided that they havereceived authorization from the armed forces which they accompany,); 1929 GPW art. 81 (Persons who follow thearmed forces without directly belonging thereto, such as correspondents, newspaper reporters, sutlers, or contractors,who fall into the hands of the enemy, and whom the latter think fit to detain, shall be entitled to be treated asprisoners of war, provided they are in possession of an authorization from the military authorities of the armedforces which they were following.); HAGUE IV REG. art. 13 (Individuals who follow an army without directlybelonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemyshands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they arein possession of a certificate from the military authorities of the army which they were accompanying.); LIEBERCODE art. 50 (Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, orreporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such.).314 Refer to 9.18.3 (Advance of Pay).315 Refer to 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).316 Refer to 4.27.1 (Identification Cards Used to Help Clarify Status).

147 4.15.4 Persons Authorized to Accompany the Armed Forces Liability Under DomesticLaw for Participation in Hostilities. Unlike combatants, persons authorized to accompany thearmed forces receive no general license to participate in hostilities. However, international lawcontemplates that persons authorized to accompany the armed forces may lawfully supportarmed forces in the conduct of hostilities. Such persons should not be liable under an enemyStates domestic law for providing authorized support services. 317 For example, they should notbe prosecuted for offenses of aiding the enemy. Persons authorized to accompany the armedforces may not be punished by an enemy State for authorized support activities or for defendingthemselves against unlawful attacks. This protection would not apply with respect to acts bypersons authorized to accompany the armed forces that are prohibited by the law of war.

Persons authorized to accompany the armed forces should not engage in unauthorizedparticipation in hostilities. Such activity would be treated like engagement in private acts ofhostility, 318 and such persons would be in the position of unprivileged belligerents in relation tothose activities. 319

There may be additional considerations in determining which prosecution forum is

appropriate because persons authorized to accompany the armed forces are not themselvesmembers of the armed forces. 320

Commanders who use persons authorized to accompany the armed forces could, undercertain circumstances, be prosecuted for war crimes committed by such personnel under theoriesof command responsibility or other theories of individual liability. 321

4.16 CREWS OF MERCHANT MARINE VESSELS OR CIVIL AIRCRAFT

Crews of merchant marine vessels or civil aircraft of a belligerent fall into a specialcategory, and are in many respects treated like persons authorized to accompany the armed

317 See BOTHE, PARTSCH, & SOLF, NEW RULES 304 (AP I art. 51, 2.4.2.2) (As civilians, they have no general rightto take part in hostilities, but some activities of these persons could amount to direct participation if done in themidst of an ongoing engagement. For example, it is common practice to have civilian technical advisers assist andadvise in the installation and maintenance of sophisticated command and control or target acquisition equipment.Repair of a target acquisition or missile guidance equipment in the midst of battle would probably be regarded asdirect participation in hostilities. As in the case of a sick bay on a warship, the immunity from attack is academic,except with respect to individualized attack against the protected person within a military objective. The issuebecomes practically significant only if an attempt is made to subject such a civilian to penal sanction for hisunauthorized participation in hostilities. Under US practice support activities behind the lines of battle is not subjectto penal sanction, although the support activity may be the legitimate object of attack.).318 Refer to 4.18 (Private Persons Who Engage in Hostilities).319 Refer to 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).320 Refer to 18.19.4.1 (Limits on Military Jurisdiction Over U.S. Citizens Who Are Not Members of the ArmedForces).321 Refer to 18.23.3 (Command Responsibility); 18.23 (Theories of Individual Criminal Liability).

148forces. 322 Under certain circumstances, crews of merchant marine vessels or civil aircraft of aneutral that engage in hostilities may be treated like the crews of belligerent vessels or aircraft. 323

aircraft of a belligerent may be used to support military operations, such as by conveying goodsand military personnel to theaters of active military operations.

Enemy merchant vessels or civil aircraft may be captured. 324 Belligerent merchantvessels or civil aircraft may resist attacks by enemy forces, including by eventually seizing theattacking vessels or aircraft. 325 However, merchant vessels or civil aircraft should not commithostile acts in offensive combat operations. 326

4.16.2 Merchant or Civil Crews Detention. Members of the crews of merchant marinevessels or civil aircraft of a belligerent are entitled to POW status, if they fall into the power ofthe enemy during international armed conflict. 327

The GPW contemplates that certain members of the crews of merchant marine vessels orcivil aircraft of a belligerent may benefit from more favorable treatment under international law;i.e., they would not be detained as POWs. During wartime, enemy merchant seamen havecustomarily been subject to capture and detention. 328 However, the 1907 Hague XI provides thatthe crews of enemy merchant ships that did not take part in hostilities were not to be held asPOWs provided that they make a formal promise in writing, not to undertake, while hostilitieslast, any service connected with the operations of the war. 329 Although these provisions proved

322 Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).323 Refer to 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-MarkedCivil Aircraft).324 Refer to 13.5 (Enemy Merchant Vessels).325 LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 266 (85) (In a sense, the crews of merchantmen ownedby subjects of a belligerent belong to its armed forces. For those vessels are liable to be seized by enemy men-of-war, and, if attacked for that purpose, they may defend themselves, may return the attack, and eventually seize theattacking men-of-war. The crews of merchant men become in such cases combatants, and enjoy all the privileges ofthe members of the armed forces.).326 LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 266 (85) (But, unless attacked, they must not commithostilities, and if they do so they are liable to be treated as criminals, just as are private individuals who commithostilities in land warfare.).327 GPW art. 4A(5) (defining prisoners of war, in the sense of the present Convention, to include [m]embers ofcrews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Partiesto the conflict, who do not benefit by more favourable treatment under any other provisions of international lawwho have fallen into the power of the enemy).328 GPW COMMENTARY 65 (In the past, it was generally recognized that in time of war merchant seamen wereliable to capture.).329 See HAGUE XI art. 6 (The captain, officers, and members of the crew, when nationals of the enemy State, are notmade prisoners of war, on condition that they make a formal promise in writing, not to undertake, while hostilitieslast, any service connected with the operations of the war.); HAGUE XI art. 8 (The provisions of the threepreceding articles do not apply to ships taking part in the hostilities.).

149ineffective during World War I and World War II, 330 the GPW allows for the possibility thatthey might apply. 331

4.17 SPIES, SABOTEURS, AND OTHER PERSONS ENGAGING IN SIMILAR ACTS BEHIND ENEMY LINES

Spying, sabotage, and similar acts behind enemy lines have a dual character under thelaw of war; States are permitted to employ persons who engage in these activities, but theseactivities are punishable by the enemy State.

Belligerents may employ spies and saboteurs consistent with the law of war. However,any person (including individuals who would otherwise receive the privileges of lawfulcombatants) engaging in spying, sabotage, or similar acts behind enemy lines, is regarded as anunprivileged belligerent while doing so. These persons forfeit entitlement to the privileges ofcombatant status and may be punished after a fair trial if captured.

4.17.1 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind EnemyLines Notes on Terminology. Spying has been given a technical definition in the Hague IVRegulations. 332 However, as discussed below, certain conduct, most notably sabotage, has beentreated as having the same legal consequences as spying and has even been called spying, eventhough such acts do not meet the definition of spying in the Hague IV Regulations. 333

In some cases, saboteurs has been used in a purely factual way to refer to those personsengaged in damaging or destroying enemy materiel. 334 In other cases, saboteurs has been usedas a legal term of art to refer to those persons who are engaged in damaging or destroying enemy

330 See LEVIE, POWS 63 (explaining that Articles 5-8 of Hague XI proved ineffective during World War I and[d]uring World War II the provisions of the Eleventh Hague Convention of 1907 were again completelydisregarded, with the result that there was no assurance as to exactly what the status of a captured merchant seamanwould be.). Hague XI had fewer than 30 Parties at that time, and only technically applied when all the belligerentsto a conflict were also parties to Hague XI. See HAGUE XI art. 9 (The provisions of the present Convention do notapply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.).Hague XI did not apply during World War II for this reason. See II-A FINAL RECORD OF THE DIPLOMATICCONFERENCE OF GENEVA OF 1949 419 (UK representative noting that [t]he provisions of the Eleventh HagueConvention were not applied during the last War, owing to the fact that all the belligerent States were not parties toit.).331 For further background see II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 238-39,418-19.332 Refer to 4.17.2 (Spies).333 Refer to 4.17.3 (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines).334 1958 UK MANUAL 331 (Whether saboteurs, i.e., persons dropped or landed behind the lines of the belligerentin order to commit acts of destruction and terrorism, are to be treated as spies depends on whether they are caught indisguise or not. If they are disguised in civilian clothing or in the uniform of the army by which they are caught orthat of an ally of that army, they are in the same position as spies. If caught in their own uniform, they are entitledto be treated as prisoners of war.).

150material and who, by definition, would not be entitled to receive the privileges of combatantstatus. 335

4.17.1.1 General Usage of Spies and Saboteurs in This Manual. This manualgenerally uses the term spying and sabotage to refer to that general category of secretive,hostile activities that, when performed behind enemy lines, deprives that person of entitlement tothe privileges of combatant status. In some places, the phrase spying, sabotage, and similar actsbehind enemy lines is used to make more clear that this general category of acts is broader thanonly spying and sabotage.

4.17.2 Spies. A person may only be considered a spy when, (1) acting clandestinely orunder false pretenses, (2) in the zone of operations of a belligerent, (3) he or she obtains, orendeavors to obtain, information, (4) with the intention of communicating it to the hostileparty. 336 During war, any personmilitary or civilianwhose actions meet all of theseelements may be considered a spy under the law of war.

The following discussion elaborates upon the elements of spying.

4.17.2.1 Acting Clandestinely or Under False Pretenses. Acting clandestinely or

under false pretenses means deliberately concealing or misrepresenting ones identity andconduct. 337 For example, a member of the armed forces fulfills this element when the personwears a disguise, such as civilian clothes or the uniform of the enemy, so that the enemy will failto identify the person as a member of the opposing armed force.

335 II-A FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 621 (Norwegian representativeexplaining that [s]aboteurs could not of course claim protection under the Prisoners of War Convention; theyshould nevertheless be protected against criminal treatment and torture.).336 HAGUE IV REG. art. 29 (A person can only be considered a spy when, acting clandestinely or on false pretences,he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention ofcommunicating it to the hostile party.); LIEBER CODE art. 88 (A spy is a person who secretly, in disguise or underfalse pretense, seeks information with the intention of communicating it to the enemy.); id. at art. 83 (Scouts, orsingle soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employedin obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and sufferdeath.); WINTHROP, MILITARY LAW & PRECEDENTS 766-67 (A spy is a person who, without authority andsecretly, or under a false pretext, contrives to enter within the lines of an army for the purpose of obtaining materialinformation and communicating it to the enemy; or one who, being by authority within the lines, attempts secretly toaccomplish such purpose.). Consider AP I art. 46(3) (A member of the armed forces of a Party to the conflict whois a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathersor attempts to gather information of military value within that territory shall not be considered as engaging inespionage unless he does so through an act of false pretences or deliberately in a clandestine manner.).337 See WINTHROP, MILITARY LAW & PRECEDENTS 767 (The clandestine character of [the spys] proceedings andthe deception thus practised constitute the gist or rather aggravation of the offence of the spy.); 1958 UK MANUAL330 (The principal characteristic of the offence of espionage is disguise and secrecy in action.). Consider AP Iart. 46(3) (A member of the armed forces of a Party to the conflict who is a resident of territory occupied by anadverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information ofmilitary value within that territory shall not be considered as engaging in espionage unless he does so through an actof false pretences or deliberately in a clandestine manner.).

151 Persons who act openly, such as by wearing the uniform of the armed forces to whichthey belong, do not meet this element. 338 For example, members of a ground reconnaissanceteam or couriers who wear their normal uniforms would not meet this element. 339 In addition,observers on military reconnaissance aircraft have not been regarded as acting clandestinely orunder false pretenses. 340

4.17.2.2 In the Zone of Operations of a Belligerent. A person must engage in acts

of espionage in the zone of operations of a belligerent to be considered a spy. 341 Zone ofoperations has been construed broadly to include areas supporting the war effort. 342 However, aperson who engages in surveillance or information gathering from outside territory controlled bya hostile party would not meet this element, and would not be considered a spy.

4.17.2.3 Obtains, or Endeavors to Obtain, Information. A person may be

punished as a spy regardless of whether that person succeeds in obtaining information or intransmitting it to the enemy. 343 A person, however, must obtain or attempt to obtain informationto be considered a spy.

4.17.2.4 With the Intention of Communicating It to the Hostile Party. A person

must act with the intention of communicating the sought-after information to a hostile party tothe conflict to be considered a spy within the meaning of this rule.

338 See HAGUE IV REG. art. 29 ([S]oldiers not wearing a disguise who have penetrated into the zone of operations ofthe hostile army, for the purpose of obtaining information, are not considered spies.). Consider AP I art. 46(2) (Amember of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by anadverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while soacting, he is in the uniform of his armed forces.).339 See HAGUE IV REG. art. 29 (Soldiers and civilians, carrying out their mission openly, intrusted with the deliveryof despatches intended either for their own army or for the enemys army are not considered spies).340 See HAGUE IV REG. art. 29 (Persons sent in balloons for the purpose of carrying despatches and, generally, ofmaintaining communications between the different parts of an army or a territory are not considered spies.);WINTHROP, MILITARY LAW & PRECEDENTS 768-69 ([T]he mere observing of the enemy, with a view to gainintelligence of his movements, does not constitute [spying], for this may be done, and in active service is constantlydone, as a legitimate act of war . Observing the enemy from a balloon is no more criminal than any other form ofreconnaissance.).341 See, e.g., Ex Parte Quirin, 317 U.S. 1, 31 (1942) (characterizing a spy as one who secretly and without uniformpasses the military lines of a belligerent in time of war, seeking to gather military information and communicate it tothe enemy) (emphasis added).342 See United States ex rel. Wessels v. McDonald, 265 F. 754, 763-64 (E.D.N.Y. 1920) (In this great World Warthrough which we have just passed, the field of operations which existed after the United States entered the war,and, especially in regard to naval operations, brought the port of New York within the field of active operations.).Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (The law of war cannot rightly treat those agents of enemy armies whoenter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the lessbelligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our ArmedForces.).343 See LIEBER CODE art. 88 (The spy is punishable whether or not he succeed in obtaining the information or inconveying it to the enemy.); WINTHROP, MILITARY LAW & PRECEDENTS 768 (The fact that [one] was lurking oracting with intent to obtain material information, to be communicated by himself or another to the enemy, is allthat is required to complete the offence.).

152 However, a person who seeks to send information to a State not involved in the conflictmay still commit acts punishable by the offended State, and that persons conduct may fallwithin the broader category of secretive, hostile acts behind enemy lines. 344

4.17.3 Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind EnemyLines. In addition to spies, other persons acting clandestinely or under false pretenses with ahostile purpose behind enemy lines have also been treated like spies under the law of war.

Like spies, persons engaged in these secretive, hostile activities behind enemy lines havealso been deprived of the privileges of combatant status and often been punished. For example,saboteurs 345 acting clandestinely or under false pretenses in the zone of operations of abelligerent are treated as spies. 346 However, activities besides sabotage that are helpful to onesides war effort that are done behind the other sides lines have been punishable as well, oftenunder the rubric of war treason, 347 secretly entering the lines, 348 or activities hostile to thesecurity of the State. 349

344 Refer to 4.17.3 (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines).345 2001 CANADIAN MANUAL 610(1) (Saboteurs are persons operating behind the lines of an adverse party tocommit acts of destruction.); GC COMMENTARY 57 (Sabotage is harder to define, as no definition of it is given inany text in international law. The term sabotage [in article 5 of the GC] should be understood to mean acts whoseobject or effect is to damage or destroy material belonging to the army of occupation or utilized by it.).346 2001 CANADIAN MANUAL 610(3) (Civilian saboteurs or saboteurs not in uniform are not so protected [i.e.,entitled to POW status] and are liable to be treated as spies. Such civilian saboteurs and saboteurs not in uniformmay be tried in accordance with the law of the captor and may face the death penalty. They must not, however, bepunished without a fair trial.); 1958 UK MANUAL 331 (Whether saboteurs, i.e., persons dropped or landed behindthe lines of the belligerent in order to commit acts of destruction and terrorism, are to be treated as spies depends onwhether they are caught in disguise or not. If they are disguised in civilian clothing or in the uniform of the army bywhich they are caught or that of an ally of that army, they are in the same position as spies. If caught in their ownuniform, they are entitled to be treated as prisoners of war.).347 See GREENSPAN, MODERN LAW OF LAND WARFARE 330 (The characteristic which unites all acts of war treasonis that they are hostile acts committed inside the area controlled by the belligerent against whom the acts are directedby persons who do not possess the status of combatants.); LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW575 (255) (So-called war treason consists of all such acts (except hostilities in arms on the part of the civilianpopulation, spreading of seditious propaganda by aircraft, and espionage) committed within the lines of a belligerentas are harmful to him and are intended to favour the enemy.); LIEBER CODE art. 90 (A traitor under the law of war,or a war-traitor, is a person in a place or district under Martial Law who, unauthorized by the military commander,gives information of any kind to the enemy, or holds intercourse with him.).348 Ex parte Quirin, 317 U.S. 1, 31 (1942) (giving as an example of an unprivileged belligerent an enemy combatantwho without uniform comes secretly through the lines for the purpose of waging war by destruction of life orproperty); WINTHROP, MILITARY LAW & PRECEDENTS 786 (A similar though less aggravated offence against thelaws of war is that of officers, soldiers, or agents, of one belligerent who come secretly within the lines of the other,or within the territory held by his forces, for any unauthorized purpose other than that of the spy, as, for example, forthe purpose of recruiting for their army, obtaining horses or supplies for the same, holding unlawful communication,&c.,--a class of offences of which instances were not unfrequent in the border States during our late civil war.).349 GC art. 5 (Where in the territory of a Party to the conflict, the latter is satisfied that an individual protectedperson is definitely suspected of or engaged in activities hostile to the security of the State, such individual personshall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in thefavour of such individual person, be prejudicial to the security of such State.).

153 These kinds of activities almost necessarily take on the character of spying. 350 In manycases, these actions have been reported as spying. 351 However, the actual purpose of theseactivities may not be to gain or transmit intelligence information, but to take other sorts ofactions that would further the war effort.

Thus, a belligerents presence on the territory controlled by an opposing State with a

hostile purpose while clandestinely or under false pretenses, suffices to make that person liableto treatment as a spy under the law of war. 352

4.17.4 Spying and Sabotage Permissible Under the Law of War. Under the law of war,belligerents may employ spies and saboteurs. 353

Spying and sabotage are not prohibited by any law of war treaty to which the UnitedStates is a Party. For example, spying and sabotage are not prohibited by the 1949 GenevaConventions, nor defined as a grave breach of those conventions. 354 Similarly, spying andsabotage also have not been listed as war crimes punishable under the statutes of internationalcriminal tribunals. 355 In addition, law of war treaties that regulate, but do not prohibit, spying,recognize implicitly that belligerents may use this method of warfare. 356

350 1958 UK MANUAL 331 note 1 (A question may arise if a saboteur, being a member of the armed forces, iscaught in civilian clothes worn over or under his military uniform. It may be difficult to accept the defence that theintention was to shed the civilian clothing before the commission of the offence. Sabotage operations behind theenemy lines are frequently carried out by members of the armed forces in uniform who, upon completion of theirmission, make their way to the nearest neutral territory with a view to returning to their own country. If whenengaged in sabotage or subsequent evading action they are discovered in civilian clothing worn over their uniform orunderneath it they run the risk of being treated as spies and not merely as members of the armed forces engaged in asabotage mission. It may well be that a sabotage mission behind the enemy lines inevitably takes on the addedcharacter of espionage, unless uniform is worn throughout the stay in enemy territory.).351 L. Oppenheim, On War Treason, 33 LAW QUARTERLY REVIEW 266 (1917) (Thus, in 1780, during the AmericanWar of Independence, Major Andr was convicted and hanged as a spy, although he was not seeking informationbut was returning after having negotiated treason with General Arnold; it was a case of war treason. And theJapanese Major Shozo Jakoga and Captain Teisuki Oki, who in the summer of 1904, during the Russo-JapaneseWar, were caught, disguised in Chinese clothes, in the attempt to destroy, with the aid of dynamite, a railway bridgein Manchuria in the rear of the Russian forcesa clear case of war treasonwould previous to the HagueRegulations surely have been executed as spies; in fact the case was reported in the newspapers as one ofespionage.).352 Ex parte Quirin, 317 U.S. 1, 38 (1942) ([E]ach petitioner, in circumstances which gave him the status of anenemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress andwith hostile purpose. The offense was complete when with that purpose they entered or, having so entered, theyremained upon our territory in time of war without uniform or other appropriate means of identification.).353 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1245 (Bythe law of war it is lawful to use spies.); Richard R. Baxter, So-Called Unprivileged Belligerency: Spies,Guerillas, and Saboteurs, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 323, 333 (1951) (noting that espionageis regarded a conventional weapon of war, being neither treacherous nor productive of unnecessary suffering).354 Refer to 18.9.5 (War Crimes Notes on Terminology).355 See, e.g., Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of theUnited Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, theProvisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for

154 Although spying and sabotage are not prohibited by the law of war, acting clandestinelyor under false pretenses could, in some circumstances, constitute feigning a protected status,one of the elements of perfidy. 357 Persons engaged in these activities and commanders whoemploy them should take special care not to kill or wound by resort to perfidy.

4.17.5 Spying and Sabotage Forfeiture of the Privileges of Combatant Status. Althoughthe law of war allows belligerents to employ spies, saboteurs, and other persons engaged insecretive hostile activities behind enemy lines, the law of war also permits belligerents to takeadditional measures to defend against these persons.

These individuals, by acting clandestinely or under false pretenses, fail to distinguish

themselves as combatants generally must do. 358 Thus, persons otherwise entitled to privileges ofcombatant status, including POW status, forfeit their entitlement to those privileges whileengaged in spying, sabotage, or other hostile, secretive activities behind enemy lines. 359Although not explicitly reflected in the GPW, this understanding was the general understandingat the 1949 Diplomatic Conference 360 and is reflected in other treaties, 361 judicial decisions, 362military manuals, 363 and scholarly works. 364

the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280,288; ICTY STATUTE arts. 2-5; ICTR STATUTE arts. 2-4. Consider ROME STATUTE arts. 5-8.356 See HAGUE IV REG. arts. 24, 29-31 (governing the classification, conduct, and treatment of spies). Consider AP Iart. 46 (same).357 See 5.22.1 (Definition of Perfidy).358 Refer to 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces toDistinguish Themselves From the Civilian Population).359 Compare 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State).360 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 509 (noting the UK representativesstatement that spies according to general opinion, should not have the benefits of the privileges accorded by theGPW); II-A FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 621 (Norwegian representativeexplaining that Saboteurs could not of course claim protection under the Prisoners of War Convention; they shouldnevertheless be protected against criminal treatment and torture.).361 See HAGUE IV REG. art. 31 (impliedly contrasting the position of a spy captured while spying with a spy who,after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war,and incurs no responsibility for his previous acts of espionage.). Consider AP I art. 46 (1) (Notwithstanding anyother provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflictwho falls into the power of an adverse Party while engaging in espionage shall not have the right to the status ofprisoner of war and may be treated as a spy.); AP I art. 44(4) (A combatant who falls into the power of an adverseParty while failing to meet the requirements set forth in the second sentence of paragraph 3 [certain obligations todistinguish himself during military engagements] shall forfeit his right to be a prisoner of war, but he shall,nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the ThirdConvention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners ofwar by the Third Convention in the case where such a person is tried and punished for any offences he hascommitted.).362 See, e.g., Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as familiar examples of belligerents who aregenerally deemed not to be entitled to the status of prisoners of war); Mohamad Ali and Another v. PublicProsecutor [1969] A.C. 430 (P.C.) (appeal taken from U.K.), LEVIE, DOCUMENTS ON POWS 766 ([A]ppellants, ifthey were members of the Indonesian armed forces, were not entitled to be treated on capture as prisoners of war

155 4.17.5.1 Liability of Persons Not Captured While Spying for Previous Acts ofEspionage. Persons who qualify for the privileges of combatant status who engage in spying,and then return to friendly lines, incur no responsibility or liability for previous acts ofespionage. 365 Persons who have never qualified for the privileges of combatant status would notbenefit from this rule because they cannot regain a status that they did not receive in the firstplace. 366

4.17.5.2 Cases of Doubt. During international armed conflict, should there be anydoubt as to whether persons suspected of committing a belligerent act and having fallen into thehands of the enemy are entitled to POW status, such persons are entitled to have their statusdetermined by a competent tribunal and should be treated as POWs pending thatdetermination. 367

under the Geneva Convention when they had landed to commit sabotage and had been dressed in civilian clothesboth when they had placed the explosives and lit them and when they were arrested.).363 2001 CANADIAN MANUAL 320(1) (Generally speaking, persons engaging in espionage may be attacked and ifcaptured while doing so shall NOT have the right to the status of prisoner of war.); 1992 GERMAN MANUAL 321(Even if they are members of their armed forces, they do not have the right to the status of prisoner of war.); 1958UK MANUAL 96 (noting that regular members of the armed forces who are caught as spies are not entitled to betreated as prisoners of war); 1956 FM 27-10 (Change No. 1 1976) 74 (Members of the armed forces of a party tothe conflict and members of militias or volunteer corps forming part of such armed forces lose their right to betreated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military linesof the enemy for the purpose of gathering military information or for the purpose of waging war by destruction oflife or property.).364 LEVIE, POWS 82-83 (noting that [e]ven individuals who fall within the categories specifically enumerated inArticle 4 are not entitled to prisoner-of-war status if, at the time of capture by the enemy, they were dressed incivilian clothes and were engaged in an espionage or sabotage mission behind enemy lines); WINTHROP, MILITARYLAW & PRECEDENTS 769 (A spy, under capture, is not treated as a prisoner of war but as an outlaw, and is to betried and punished as such.).365 See HAGUE IV REG. art. 31 (A spy who, after rejoining the army to which he belongs, is subsequently capturedby the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.);LIEBER CODE art. 104 (explaining that [a] successful spy or war-traitor, safely returned to his own army, andafterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor); Rieger, DallozHebdomadaire (France, Cour de Cassation, Jul. 29, 1948), summarized in 44 AJIL 422 (1950) (The court sustainedthe acquittal of a German national who, after mobilization as a German army officer, had been in France a spy and arecruiter of spies, but had not been apprehended until after he had rejoined the German Army and been demobilizedin Germany.); In re Martin, 45 BARB. 142, 148 (New York County Supreme Court, Dec. 4, 1865) (Court directedthe release of a prisoner who was not taken in the act of committing the offense charged against him, of being aspy. He had returned within the lines of the confederate forces, or had otherwise escaped, so that he was notarrested till after the confederate armies had surrendered, been disbanded and sent to their homes, with the promisethat they should not be further disturbed if they remained there and engaged in peaceful pursuits.). Consider AP Iarts. 46(3), 46(4) (referring to persons who engage in espionage in [the] territory of a hostile party, and noting thata person may not be treated as a spy unless he is captured while engaging in espionage).366 See LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 424-25 (161) (But Article 31 applies only to spieswho belong to the armed forces of the enemy; civilians who act as spies, and are captured later, may be punished.).Cf. HAGUE IV REG. art. 31 (referring only to a spy who rejoins the army to which he belongs in connection withprotection against subsequent prosecution).367 Refer to 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined).

1564.18 PRIVATE PERSONS WHO ENGAGE IN HOSTILITIES

In general, private persons who engage in hostilities forfeit many of the protections towhich members of the civilian population are entitled, and are liable to treatment in one or morerespects as unprivileged belligerents. 368

4.18.1 Private Persons Who Engage in Hostilities Notes on Terminology. This sectionrefers to private persons who engage in hostilities rather than civilians who engage inhostilities for three reasons. First, an emphasis on private persons is consistent withlongstanding explanations of the principle of distinction. 369 Second, it may be analyticallyunhelpful to focus on civilians because private persons who engage in hostilities are liable totreatment in one or more respects as combatants. Third, non-military personnel belonging to aState (e.g., persons authorized to accompany the armed forces), who are often called civilians,raise a different set of issues that merit special consideration as opposed to the general case of aprivate person who decides to engage in hostilities.

For the purpose of applying different law of war rules, different formulations have beenused to describe when a person has engaged in hostilities. Although these phrases often refer tothe same conduct, the context in which each term is applied is important; whether a phraseincludes a particular type of conduct may depend on the particular legal rule in question.Whether a particular person is liable as a consequence of his or her conduct to treatment as acombatant (e.g., being made the object of attack, internment, or prosecution for acts ofunprivileged belligerency) must be assessed with reference to the specific legal rule at issuerather than based on the use of a conclusory label, such as enemy combatant. 370

This manual generally uses the phrase engaging in hostilities in a broad sense to referto any of those actions that could cause a person to forfeit one or more protections under the lawof war. When discussing specific legal rules, on the other hand, this manual uses the particularlanguage of the rule at issue, rather than the phrase engaging in hostilities. For example, thismanual generally reserves the use of the phrase taking a direct part in hostilities to address the

368 Refer to 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).369 See, e.g., LIEBER CODE arts. 22 and 23 (Nevertheless, as civilization has advanced during the last centuries, sohas likewise steadily advanced, especially in war on land, the distinction between the private individual belonging toa hostile country and the hostile country itself, with its men in arms. Private citizens are no longer murdered,enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations asthe commander of the hostile troops can afford to grant In the overruling demands of a vigorous war.).370 See Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the AmericanSociety of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010 DIGEST OFUNITED STATES PRACTICE IN INTERNATIONAL LAW 749 (Some commentators have criticized our decision to detaincertain individuals based on their membership in a non-state armed group. But as those of you who follow theGuantnamo habeas litigation know, we have defended this position based on the AUMF, as informed by the text,structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the variousjudges who have considered these arguments have taken issue with certain points, they have accepted the overallproposition that individuals who are part of an organized armed group like Al Qaeda can be subject to law-of-wardetention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusorylabels, like enemy combatant, but on whether the factual record in the particular case meets the legal standard.).

157rule applicable when a civilian forfeits his or her protection from being made the object ofattack. 371

4.18.2 Private Persons Who Engage in Hostilities Denial of the Distinct ProtectionsAfforded Peaceful Civilians. Private persons who engage in hostilities forfeit many of theprotections afforded civilians under the law of war. 372 The principle of military necessity canjustify taking military action (such as detention) to address the threat posed by such persons. 373The forfeiture of many of the protections of civilian status is also reflected in the principle that aperson may not claim the distinct rights of both combatants and civilians at the same time. 374

4.18.3 Private Persons Who Engage in Hostilities Lack of the Privileges of CombatantStatus. Private persons who engage in hostilities are not entitled to the privileges of combatantstatus and may be punished, after a fair trial. 375 The law of war does not condone the farmer byday and guerilla by night. 376

371 Refer to 5.9 (Civilians Taking a Direct Part in Hostilities).372 See Joint Chiefs of Staff, Joint Pub. 3-60, Joint Doctrine for Targeting, A-2 (Jan. 17, 2002) (The protectionoffered civilians carries a strict obligation on the part of civilians not to participate directly in armed combat,become combatants, or engage in acts of war. Civilians engaging in fighting or otherwise participating in combatoperations, singularly or as a group, become unlawful combatants and lose their protected civilian status.); 1992GERMAN MANUAL 517 (Persons taking a direct part in hostilities are not entitled to claim the rights accorded tocivilians by international humanitarian law (Art. 51 para 3 AP I; Art. 13 para 3 AP II). The same applies if they arethey are definitely suspected of activities hostile to the security of the State (Art. 5 para 1 GC IV).); 1956 FM 27-10(Change No. 1 1976) 60 (Persons who are not members of the armed forces, as defined in Article 4, GPW, whobear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privilegesattaching to the members of the civilian population (see sec. II of this chapter).).373 Refer to 2.2.1 (Military Necessity as a Justification).374 Refer to 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at theSame Time).375 See 1958 UK MANUAL 88 (If civilian inhabitants commit or attempt to commit hostile acts, they are liable topunishment, after a proper trial.); LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 206 (57) (According to agenerally recognised customary rule of International Law, hostile acts on the part of private individuals, notorganised as compact movements operating under responsible authority, are not acts of legitimate wafare, and theoffenders may be punished in accordance with International Law.); United States v. List, et al., XI TRIALS OF WARCRIMINALS BEFORE THE NMT 1246 ([T]he rule is established that a civilian who aids, abets, or participates in thefighting is liable to punishment as a war criminal under the laws of war.); LIEBER CODE art. 82 (Men, or squads ofmen, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind,without commission, without being part and portion of the organized hostile army, and without sharing continuouslyin the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumptionof the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers -- such men,or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners ofwar).376 BOTHE, PARTSCH, & SOLF, NEW RULES 252 (AP I art. 44, 2.7.1) ([T]he pre-existing rule [i.e., prior to AP I]precluded combatant status and PW status for the persons who engaged in civilian pursuits during the day but foughtas a guerilla by night.); SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims:Report of the Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 5 (Jun.27, 1955) (In sum, extension of protection to partisans [in the GPW] does not embrace that type of partisan whoperforms the role of farmer by day, guerilla by night. Such individuals remain subject to trial and punishment asunlawful belligerents.); THEODORE WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW 216 (134)(1897) (explaining that [g]uerilla parties [i.e., armed groups not called out by public authority], however, do not

158 The denial of the privileges of combatant status to private persons engaging in hostilitiesmay be justified on the basis that such persons act inconsistently with the jus ad bellum principleof competent authority, under which the resort to armed force is a prerogative of the State. 377These individuals lack the principal qualification for entitlement to the privileges of combatantstatusState authorization. 378 This requirement for State authorization has been traced tomedieval law of arms. 379

Denying private persons who engage in hostilities the privileges of combatant status hasalso been viewed as justified on humanitarian grounds. Private persons who engage in hostilitiesrisk undermining the protections afforded the civilian population. 380 And, private persons whoengage in hostilities generally have not been trained in the law of war and are not subject to thesame disciplinary regime as members of the armed forces. 381 Thus, their participation inhostilities has been associated with the commission of war crimes. 382

enjoy the full benefit of the laws of war and instead are apt to fare worse than either regular troops or an unarmedpeasantry because, inter alia, they put on and off with ease the character of a soldier).377 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).378 Refer to 4.6.2 (Belonging to a Party to the Conflict).379 G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OFINTERNATIONAL LAW 173, 175 (1971) (With the break-up of Christendom the medieval law of arms took shape asthe embryonic international law of war. The older idea of knights, men-at-arms and mercenaries avowed by aprince changed to that of armed forces in the service of a territorial, secular state. However, many of the ideas andtechnical rules of the jus militare came through into the new international law of war, including the idea of a right orprivilege to fight reserved for military classes and the requirement of a certain openness in the manner of fighting.This openness spells out the older idea of a public war and the rejection of perfidy as abhorrent to the knightlyclasses. Conversely, those who had not the right to fight met short shrift at the hands of those who had. Themarauder and the freebooter acted against, and were outside, faith and the law of nations and were early forms ofwar criminals.). See also M. H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 246 (1965) (The medievallaw of arms was a formal and generally accepted law, and its currency helped to establish the principle that war,in its proper sense could only be waged by sovereigns.).380 GREENSPAN, MODERN LAW OF LAND WARFARE 55 (If any and every citizen capable of bearing arms is entitledto use them then the distinction between the soldier and the remainder of the population disappears. The resultcould only expose the civilian element, regardless of sex, to massacre. The enemy soldier, unable to distinguish hisfoe, aware that any man, woman, boy, or girl in civilian clothes might produce at any moment a concealed weaponto be used against him, would inevitably be disposed to treat soldier and civilian alike, indiscriminately.); RaymundT. Yingling and Robert W. Ginnane, The Geneva Conventions of 1949, 46 AJIL 393, 402 (1953) (While theconditions imposed by the convention for treatment as prisoners of war of members of resistance movements wouldnot have covered many persons acting as partisans during World War II, nevertheless, it is believed that suchconditions are the minimum necessary if regular forces are to have any protection against attacks by the civilianpopulation and if any distinction is to be made between combatants and noncombatants. The farmer by day,assassin by night, type of partisan cannot be condoned by international law, whatever other justificationcircumstances may give him.). Refer to 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance),footnote 164 and accompanying text.381 Refer to 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).382 See, e.g., CHARLES HENRY HYDE, II INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIED BY THEUNITED STATES 296 (1922) (The law of nations, apart from the Hague Regulations above noted, denies belligerentqualifications to guerrilla bands. Such forces wage a warfare which is irregular in point of origin and authority, ofdiscipline, of purpose and of procedure. They may be constituted at the beck of a single individual; they lackuniforms; they are given to pillage and destruction; they take few prisoners and are hence disposed to show slight

159 4.18.4 Activities That Constitute Engaging in Hostilities by Private Persons. Certainactivities constitute engaging in hostilities, i.e., when done by private persons, make themliable to treatment in one or more respects by the enemy State as unprivileged belligerents.

4.18.4.1 Being Part of a Hostile, Non-State Armed Group. Being part of a non-State armed group that is engaged in hostilities against a State is a form of engaging in hostilitiesthat makes private persons liable to treatment in one or more respects as unprivilegedbelligerents by that State. 383 Being part of a non-State armed group may involve formallyjoining the group or simply participating sufficiently in its activities to be deemed part of it.

Whether a person has joined a non-State armed group may be a difficult factual question.Non-State armed groups may not use formal indicia of membership (e.g., uniforms or identitycards), or members of these groups may seek to conceal their association with the group. 384 Itmay be appropriate to use circumstantial or functional information to assess whether a person ispart of a non-State armed group. 385

In addition, non-State armed groups may also rely on individuals who are not members ofthe groups, but who are functionally part of those organizations. Their support might beparticularly important to enable the non-State armed group to conduct and sustain itsoperations. 386 For example, these individuals might participate sufficiently in the activities ofthe group or support its operations substantially in a way that is analogous to the support thatpersons authorized to accompany the armed forces provide to the armed forces. 387 These

quarter.); Wharton, Com. Am. Law, 221, VII MOORES DIGEST 175 (If war were to be waged by private parties,operating according to the whims of individual leaders, every place that was seized would be sacked and outraged;and war would be the pretence to satiate private greed and spite.).383 See, e.g., In re Guantanamo Bay Litigation, Respondents Memorandum Regarding the Governments DetentionAuthority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 5-6 (D.D.C., Mar. 13, 2009) (Becausethe use of force includes the power of detention, the United States has the authority to detain those who were part ofal-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognizethat members of enemy forces can be detained even if they have not actually committed or attempted to commit anyact of depredation or entered the theatre or zone of active military operations. Accordingly, under the AUMF asinformed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, theprincipal organizations that fall within the AUMFs authorization of force.) (internal citations omitted); Hamdan v.Rumsfeld, 548 U.S. 557, 693 (2006) (Thomas, J., dissenting) (For well over a century it has been established that tounite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws ofwar; the offence is complete when the band is organized or joined.) (internal emphasis and quotations omitted).384 Refer to 17.5.1.1 (Increased Difficulty in Identifying Enemy Forces and Other Military Objectives).385 See, e.g., Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (Although it is clear al Qaeda has, or at leastat one time had, a particular organizational structure, , the details of its structure are generally unknown, , butit is thought to be somewhat amorphous, . As a result, it is impossible to provide an exhaustive list of criteria fordetermining whether an individual is part of al Qaeda. That determination must be made on a case-by-case basisby using a functional rather than a formal approach and by focusing upon the actions of the individual in relation tothe organization.) (internal citations omitted).386 Refer to 17.5.1.2 (Different Support Structures for Non-State Armed Groups).387 Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).

160individuals may be regarded as constructively part of the group, even if they are, in fact, notformal members of the group. 388

4.18.4.2 Other Hostile Acts. In addition to being part of or substantially

supporting a hostile, non-State armed group, other hostile acts can make a person liable totreatment in one or more respects as an unprivileged belligerent under the law of war. Forexample, private persons who bear arms against enemy personnel or who attempt to kill or injureenemy personnel would become liable to being made the object of attack. 389 Performing spying,sabotage, and other hostile activities behind enemy lines would render a person liable toprosecution for such conduct. 390

4.18.5 Private Persons Who Engage in Hostilities and the Law of War. As in the cases ofspying and sabotage, under international law private enemy nationals are not generally regardedas being prohibited from engaging in hostilities during international armed conflict.International law does recognize, however, that opposing States may punish such persons. 391Nonetheless, like other forms of unprivileged belligerency, private engagement in hostilities hasbeen described in some contexts as a war crime or as a violation of international law or the lawof war. 392

388 Hedges v. Obama, No. 12-3644, Reply Brief for Defendant-Appellant, 11-12 (2d Cir. Sept. 20, 2012) (Moregenerally, substantial support encompasses individuals who, even if not considered part of the irregular enemyforces at issue in the current conflict, bear sufficiently close ties to those forces and provide them support thatwarrants their detention consistent with the law of war. The substantial support concept, as properly informed bythe law of war, would include people whose support for al-Qaeda or the Taliban makes them analogous to those whoaccompany the armed forces without actually being members thereof, such as civilian members of military aircraftcrews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare ofthe armed forces. Such substantial supporters are, in short, more or less part of the armed force and subject tolaw-of-war detention for the duration of the conflict.) (internal citations omitted).389 Refer to 5.9 (Civilians Taking a Direct Part in Hostilities).390 Refer to 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).391 See GREENSPAN, MODERN LAW OF LAND WARFARE 61 (Guerillas who do not comply with the provisions laiddown [of GPW art. 4(A)(2)] may perform patriotic service for their country (just as espionage agents often do), yetsuch illegitimate hostilities come within the technical heading of war crimes, and their perpetrators must be preparedto take their punishment if captured.); United States v. List, et al. (The Hostage Case), XI TRIALS OF WARCRIMINALS BEFORE THE NMT 1245 (Just as the spy may act lawfully for his country and at the same time be a warcriminal to the enemy, so guerrillas may render great service to their country and, in the event of success, becomeheroes even, still they remain war criminals in the eyes of the enemy and may be treated as such.); HERBERT C.FOOKS, PRISONERS OF WAR 40 (1924) (Individuals who undertake to wage a war in their private capacity are notentitled to the treatment of prisoners of war. The enemy may punish them when captured as war criminals. Thesafety of the troops compels the enemy to punish such hostilities as acts of illegitimate warfare, and internationallaw gives the right to do so. Nations do not prohibit its citizens from such acts, however, for they may be mosthelpful to it just as spying is helpful.).392 See, e.g., James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEYGENERAL 297, 314 (1869) (A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies,may be tried, condemned, and executed as offenders against the laws of war.).

161 In discussions of the status of private acts of hostility under international law, the point isoften made that international law does not require States to prevent what they may regard as actsof patriotism and heroism. 393

However, outside the context of patriotic acts of resistance by persons in international

armed conflict, private acts of hostility often carry additional sanction under international law.For example, persons who set off in private military expeditions against a foreign State from aState that has peaceful relations with the foreign State, have been subject to punishment underthe law of nations. 394 Similarly, private acts of hostility, under certain conditions, may beregarded as piracy. 395 In contemporary parlance, private acts of hostility are often punished asterrorism. 396 The unauthorized use of violence by private persons to achieve political ends hasbeen viewed as contrary to the principles of democratic States. 397 Moreover, States haveobligations under international law to repress terrorism, especially when conducted on theirterritory against other States. 398

4.19 RIGHTS, DUTIES, AND LIABILITIES OF UNPRIVILEGED BELLIGERENTS

Unprivileged belligerents have certain rights, duties, and liabilities. In general,

unprivileged belligerents lack the distinct privileges afforded to combatants and civilians, and aresubject to the liabilities of both classes. Unprivileged belligerents generally may be made theobject of attack by enemy combatants. They, however, must be afforded fundamental guaranteesof humane treatment if hors de combat. Unprivileged belligerents may be punished by enemyStates for their engagement in hostilities if they are convicted after a fair trial.

393 Richard R. Baxter, So-Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs, 28 BRITISH YEARBOOK OF INTERNATIONAL LAW 323, 342 (1951) (In both occupied and unoccupied areas, resistance activities,guerrilla warfare, and sabotage by private persons may be expected to continue on at least as widespread a basis infuture warfare as they have in the past. More often than not, patriotism or some sort of political allegiance lies at theroot of such activities. Consequently the law of nations has not ventured to require of states that they prevent thebelligerent activities of their citizenry or that they refrain from the use of secret agents or that these activities uponthe part of their military forces or civilian population be punished.).394 Refer to 15.1.5 (Domestic Neutrality Laws).395 Refer to 13.3.3.1 (Entitlement of Vessels to Conduct Attacks During Non-International Armed Conflict).396 See, e.g., R. v. Khawaja, (Supreme Court of Canada, Dec. 14, 2012) (upholding the terrorism conviction of adefendant who provided support to terrorist groups in Afghanistan and rejecting his argument that his support forterrorist groups could not be punished because they were part of an armed conflict governed by international law).397 Public Prosecutor v. Folkerts, (The Netherlands, District Court of Utrecht, Dec. 20, 1977), reprinted in 74INTERNATIONAL LAW REPORTS 695, 698 (1987) (It is totally unacceptable in democratic countries such as thosejust mentioned [the United States and the Federal Republic of Germany], and also in the Netherlands, for individualswho disagree with their countrys policy, for that reason to resort to acts of violence such as those which took placehere. Such acts attack the most fundamental principles of the constitutional State.).398 See, e.g., U.N. SECURITY COUNCIL RESOLUTION 1373, U.N. Doc. S/RES/1373 (2001) (deciding that all Statesshall, inter alia, [e]nsure that any person who participates in the financing, planning, preparation or perpetration ofterrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measuresagainst them, such terrorist acts are established as serious criminal offences in domestic laws and regulations andthat the punishment duly reflects the seriousness of such terrorist acts;).

162 4.19.1 Rules Applicable to the Treatment of Unprivileged Belligerents. Althoughunprivileged belligerents have not been recognized and protected in treaty law to the same extentas peaceful civilians and lawful combatants, 399 basic guarantees of humane treatment incustomary international law (i.e., elementary considerations of humanity) protect unprivilegedbelligerents. 400 Moreover, some treaty protections apply to certain unprivileged belligerents. 401

In some cases, U.S. practice has, as a matter of domestic law or policy, affordedunprivileged belligerents more favorable treatment than they would be entitled to receive underinternational law. 402 Nonetheless, U.S. practice has also recognized that unprivilegedbelligerents should not be afforded the distinct privileges afforded lawful combatants and theprotections afforded peaceful civilians under the law of war. 403

belligerents lack the right to engage in hostilities, international law nevertheless requires thatthey observe the same duties as lawful combatants during their conduct of hostilities. 404

In addition, unprivileged belligerents are generally subject to the same liabilities to whichcombatants are subject in the conduct of hostilities; i.e., they may be made the object of attack byenemy combatants. Unprivileged belligerents placed hors de combat, however, may not be madethe object of attack, and must be treated humanely.

4.19.3.1 Humane Treatment. Although unprivileged belligerents are not entitled

to the privileges of POW status, unprivileged belligerents, like all other detained persons, mustbe treated humanely. In particular, they, like all other detainees, must receive, at a minimum, thefundamental guarantees of humane treatment described in Common Article 3 of the 1949Geneva Conventions. 405 In addition, the United States has explicitly supported, out of a sense of

399 Refer to 4.3.1 (Unprivileged Belligerents as a Category in Treaty Law).400 Refer to 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards).401 See, e.g., GPW art. 3; GC art. 5.402 See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (affording the constitutional privilege of habeas corpus toaliens detained as unprivileged belligerents at Guantanamo); U.S. MILITARY ASSISTANCE COMMAND VIETNAMDIRECTIVE 381-46, Military Intelligence: Combined Screening of Detainees Annex A 4.a.(2)-(3) (Dec. 27, 1967),reprinted in 62 AJIL 766-67 (classifying as POWs members of certain categories of guerilla or insurgent unitsprovided that they were not engaged in acts of terrorism, sabotage, or spying while captured).403 Refer to, e.g., 4.6.1.2 (AP I and the GPW 4A(2) Conditions); FRANCIS LIEBER, GUERRILLA PARTIESCONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 22 (1862) (no army, no society, engaged in war,any more than a society at peace, can allow unpunished assassination, robbery, and devastation, without the deepestinjury to itself and disastrous consequences, which might change the very issue of the war.).404 Refer to 4.4.1 (Combatants Conduct of Hostilities).405 Refer to 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

163legal obligation, the fundamental guarantees reflected in Article 75 of AP I as minimumstandards for the humane treatment of all persons detained during international armed conflict. 406

4.19.3.2 Cases of Doubt. During international armed conflict, in cases of doubt as

to whether a person held as an unprivileged belligerent is, in fact, a POW or entitled to POWtreatment, that person should enjoy POW protections until their status is assessed by a competenttribunal. 407

4.19.3.3 Necessary Security Measures. A State may take necessary security

measures with regard to unprivileged belligerents.

Since they have engaged in hostilities, unprivileged belligerents, or persons suspected of

being unprivileged belligerents, may be denied certain privileges to which they might otherwisebe entitled under the law of war. For example, the rights of unprivileged belligerents who areentitled to protected person status under the GC would be subject to derogation for securityreasons. 408 However, unprivileged belligerents who are protected by the GC should be affordedits full protections when feasible. 409

4.19.3.4 Duration of Detention. Unprivileged belligerents who are detained in

order to prevent their further participation in hostilities generally must be released whenhostilities have ended, unless there is another legal basis for their detention. 410 DoD practice hasbeen to review periodically the detention of all persons not afforded POW status or treatment. 411

4.19.4 Unprivileged Belligerents Liability for Participation in Hostilities. Although

international law affords lawful combatants a privilege or immunity from prosecution, 412unprivileged belligerents lack such protection. 413 A State may punish unprivileged enemybelligerents, 414 subject to applicable requirements, such as a fair trial. 415

406 Refer to 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).407 Refer to 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined).408 Refer to 10.4 (Derogation for Security Reasons).409 Refer to 10.4.4 (Limits on Derogation).410 Refer to 8.14.3.1 (Participants in Hostilities or Persons Belonging to Armed Groups That Are Engaged inHostilities).411 Refer to 8.14.2 (Review of Continued Detention for Security Reasons).412 Refer to 4.4.3 (Combatants - Legal Immunity From a Foreign States Domestic Law).413 Refer to 4.17.5 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status); 4.18.3 (PrivatePersons Who Engage in Hostilities Lack of the Privileges of Combatant Status).414 See, e.g., 1956 FM 27-10 (Change No. 1 1976) 73 (The foregoing provisions [of article 5 of the GC] impliedlyrecognize the power of a Party to the conflict to impose the death penalty and lesser punishments on spies,saboteurs, and other persons not entitled to be treated as prisoners of war, except to the extent that that power hasbeen limited or taken away by Article 68, GC (par. 438).); LIEBER CODE art. 88 (The spy is punishable with deathby hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy.).415 See HAGUE IV REG. art. 30 (A spy taken in the act shall not be punished without previous trial.).

164 4.19.4.1 Unprivileged Belligerency and the Law of War Notes on Terminology.In contemporary parlance, spying and other forms of unprivileged belligerency generally havenot been referred to as violations of the law of war or war crimes. 416 For example, spying ispermissible under the law of war in the sense that belligerents are not prohibited from employingspies; these activities are punishable but not prohibited under international law. 417

However, in some cases, offenses related to unprivileged belligerency have been

characterized as violations of the law of war. 418 For example, spying has been called a violationof the law of war or war crime. 419 Spying and other acts of unprivileged belligerency havebeen called offenses against the law of nations or law of war the punishment of these offendershas been viewed as a recognized incident or exercise of a belligerents war powers under the lawof war. 420

The difference in these characterizations may be traced to different definitions of war

crime that have been used over time. The difference in these characterizations may also betraced to different definitions of the law of war. If one views the law of war as only containingprohibitions, the punishment of unprivileged belligerents, like all exercises of the war powers,emanates from the domestic law of the belligerent State. 421 On the other hand, if one views the

416 Richard R. Baxter, So-Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs, 28 BRITISH YEARBOOK OF INTERNATIONAL LAW 323, 324 (1951) (The correct legal formulation is, it is submitted, that armed andunarmed hostilities, wherever occurring, committed by persons other than those entitled to be treated as prisoners ofwar or peaceful civilians merely deprive such individuals of a protection they might otherwise enjoy underinternational law and place them virtually at the power of the enemy. Unlawful belligerency is actuallyunprivileged belligerency.).417 Refer to 4.17.4 (Spying and Sabotage Permissible Under the Law of War).418 See, e.g., 10 U.S.C. 950t (27) (defining the offense of spying as in violation of the law of war); G.I.A.D.Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OFINTERNATIONAL LAW 173, 173, 176 (1971) (On balance, the theory that illicit combatants may be killed aftercapture, as an act of warfare, subject to any restraint imposed by the law of war, is somewhat artificial. There maybe some substance in the contention, and it may be more consonant with the war practices of belligerents, theofficial manuals on the law of war issued by States, and the decisions of national tribunals applying the law of war,that illegal participation in combat is a violation of the law of war exposing the offender to loss of immunity fromattack, and, upon capture, to trial and punishment upon conviction. However, the matter is controversial, and thereare certain passages in the classical writers on the law of war, such as Grotius, which lend support to the theory ofunprivileged belligerency.).419 See, e.g., U.N. SECRETARY-GENERAL, Historical Survey of the Question of International Criminal Jurisdiction,U.N. Doc. A/CN.4/7/Rev.1, 1 (1949) (During the greater part of modern history customary law has also recognizedso-called war crimes of various description. Perfidy, particularly that type of perfidy which is described asespionage, is the oldest example of such a war crime.); Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies asoffenders against the law of war subject to trial and punishment by military tribunals.); WINTHROP, MILITARYLAW & PRECEDENTS 770 (Under the law of nations and of war, [a spys] offence is an exclusively military one,cognizable only by military tribunals.); G. SHERSTON BAKER, I HALLECKS INTERNATIONAL LAW 628-29 (18.20)(1908) (the act of spying is an offence against the laws of war alone); James Speed, Attorney General, MilitaryCommissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL 297, 312-13 (1869) (to act as spy is an offenceagainst the laws of war, every lawyer knows that a spy was a well-known offender under the laws of war,).420 Ex parte Quirin, 317 U.S. 1, 28 (1942) (holding that the trial and punishment of enemy saboteurs by militarycommission was an important incident to the conduct of war).421 Refer to 1.3.3.1 (Law of War as Prohibitive Law).

165law of war as also including sources of authority, the punishment of unprivileged belligerents isalso grounded in the international law of war. 422

Although the relationship between unprivileged belligerency and the law of war has beencharacterized in different ways, it is well-accepted that States may punish unprivileged enemybelligerents after a fair trial.

4.20 CHILDREN

The GC provides special protection for children in order to protect them against thedangers of war. In addition, certain provisions of treaties and U.S. law seek to restrict the use orrecruitment of children in armed conflict.

4.20.1 Specific Protections for All Children During International Armed Conflict.

4.20.1.1 Children Under Fifteen Who Are Orphaned or Separated. The parties tothe conflict shall take the necessary measures to ensure that children under fifteen, who areorphaned or are separated from their families as a result of the war, are not left to their ownresources, and that their maintenance, the exercise of their religion, and their education arefacilitated in all circumstances. 423 The maintenance of the children concerned means theirfeeding, clothing, and accommodation, care for their health, and, where necessary, medical andhospital treatment. 424

Their education shall, as far as possible, be entrusted to persons of a similar cultural

tradition. 425 This provision is intended to exclude inappropriate religious or political propagandadesigned to influence them. 426

The parties to the conflict shall facilitate the reception of such children in a neutralcountry for the duration of the conflict with the consent of the Protecting Power, if any, andunder due safeguards for the observance of the principles stated in the first paragraph of Article24 of the GC. 427

422 Refer to 1.3.3.2 (Law of War as Permissive Law).423 GC art. 24 (The Parties to the conflict shall take the necessary measures to ensure that children under fifteen,who are orphaned or are separated from their families as a result of the war, are not left to their own resources, andthat their maintenance, the exercise of their religion and their education are facilitated in all circumstances.).424 GC COMMENTARY 187 (The maintenance of the children concerned means their feeding, clothing, andaccommodation, care for their health and, where necessary medical and hospital treatment.).425 GC art. 24 (Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.).426 GC COMMENTARY 187 (That provision is most important. It is intended to exclude any religious or politicalpropaganda designed to wean children from their natural milieu; for that would cause additional suffering to humanbeings already grievously stricken by the loss of their parents.).427 GC art. 24 (The Parties to the conflict shall facilitate the reception of such children in a neutral country for theduration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for theobservance of the principles stated in the first paragraph.).

166 4.20.1.2 Identification for Children Under Twelve. The parties to the conflictshall endeavor to arrange for all children under twelve to be identified by the wearing of identitydiscs, or by some other means. 428 The age of twelve was chosen because it was considered thatchildren over twelve are generally capable of stating their own identity. 429

4.20.2 Protection for Alien Children in a Belligerents Home Territory. In a belligerents

home territory, the GC provides that certain aliens (i.e., those qualifying for protected personstatus under the GC) who are children under fifteen years, pregnant women, and mothers ofchildren under seven years shall benefit from any preferential treatment to the same extent as thenationals of the State concerned. 430

4.20.3 Protection for Children in Occupied Territory. Provisions of the GC address theprotection of children in occupied territory. 431

4.20.4 Protection for Children in the Context of Internment Under the GC. The GCprovides certain protections for children in the context of internment. Provisions of the GCaddress:

the internment of children with their parents; 432

special treatment for children during internment, including

o ensuring the education of children and young people, including school

attendance, 433

o additional food for children under fifteen in proportion to their physiological

needs, 434 and

o special playgrounds reserved for children and young people; 435 and

428 GC art. 24 (They shall, furthermore, endeavour to arrange for all children under twelve to be identified by thewearing of identity discs, or by some other means.).429 GC COMMENTARY 189 (It will be noticed that the age limit here is twelve, whereas in the first two paragraphs itwas fifteen years of age: this is in accordance with a recommendation made at the XVIIth International Red CrossConference in Stockholm, where it was considered that children over twelve were generally capable of stating theirown identity.).430 Refer to 10.7.1 (Regulation of the Situation of Protected Persons, in Principle, by Provisions Applicable toAliens in Time of Peace).431 Refer to 11.13 (Protection of Children in Occupied Territory).432 Refer to 10.10.3 (Families Kept Together).433 Refer to 10.16.2 (Education).434 Refer to 10.13.1.2 (Additional Food for Certain Groups).435 Refer to 10.16.3 (Opportunities for Physical Exercise, Sports, and Outdoor Games).

167 special agreements for the release, the repatriation, the return to places of residence, or the accommodation in a neutral country of, among others, children, pregnant women, and mothers with infants and young children. 436

4.20.5 Child Soldiers. Certain provisions of treaties and U.S. law seek to restrict the useor recruitment of children in armed conflict. If children are nonetheless employed in armedconflict, they generally are treated on the same basis as adults, although children may be subjectto special treatment in detention because of their age.

Prohibitions on the use or recruitment of children also apply in non-international armed

conflict. 437

4.20.5.1 U.S. Offense of Recruiting or Using Child Soldiers. U.S. law makes it acrime, under certain circumstances, to recruit, enlist, or conscript a person to serve in an armedforce or group, while such person is under 15 years of age. 438 U.S. law also makes it a crime touse a person under 15 years of age to participate actively in hostilities. 439 These restrictions inU.S. law are similar to provisions in treaties to which the United States is not a Party. 440

4.20.5.2 Child Soldiers Protocol. As a Party to the Optional Protocol to the

Convention on the Rights of the Child on the involvement of children in armed conflict, 441 theUnited States must take all feasible measures to ensure that members of [its] armed forces whohave not attained the age of 18 years do not take a direct part in hostilities. 442 The United States

436 Refer to 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of CertainClasses of Internees).437 Refer to 17.10.2 (Children and Participation in Non-International Armed Conflict).438 18 U.S.C. 2442(a) (making punishable, under certain circumstances, [w]hoever knowingly (1) recruits,enlists, or conscripts a person to serve while such person is under 15 years of age in an armed force or group; knowing such person is under 15 years of age).439 18 U.S.C. 2442(a) (making punishable, under certain circumstances, [w]hoever knowingly (2) uses aperson under 15 years of age to participate actively in hostilities; knowing such person is under 15 years of age).440 Consider AP I art. 77(2) (The Parties to the conflict shall take all feasible measures in order that children whohave not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrainfrom recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteenyears but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priorityto those who are oldest.); Convention on the Rights of the Child, art. 38(2)-(3), Feb. 16, 1995, 1577 UNTS 3, 56(providing that States Parties shall take all feasible measures to ensure that persons who have not attained the ageof fifteen years do not take a direct part in hostilities and that States Parties shall refrain from recruiting anyperson who has not attained the age of fifteen years into their armed forces); ROME STATUTE art. 8(2)(b)(xxvi)(defining war crime to include [c]onscripting or enlisting children under the age of fifteen years into the nationalarmed forces or using them to participate actively in hostilities in international armed conflict).441 2201 UNTS 311 (RATIFICATION (WITH DECLARATION AND UNDERSTANDINGS) United States of America Depositof instrument with the Secretary-General of the United Nations: 23 December 2002).442 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in ArmedConflict, art. 1, May 25, 2000, 2173 UNTS 222, 237 (States Parties shall take all feasible measures to ensure thatmembers of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.).

168made a statement of understanding regarding the meaning of the phrase direct part in hostilitiesin the Child Soldiers Protocol. 443

As a Party to the Child Soldiers Protocol, the United States also has an obligation toensure that persons who have not attained the age of 18 years are not compulsorily recruited intoits armed forces. 444 In a declaration deposited pursuant to Article 3(2) of the Child SoldiersProtocol, 445 the United States described its measures in place to comply with this obligation andstated that the minimum age at which it permitted persons to be voluntarily recruited in the U.S.Armed Forces is 17 years of age. 446

4.20.5.3 Treatment of Child Soldiers. In general, children receive the rights,

duties, and liabilities of combatant status on the same basis as other persons. For example, thereis no age requirement for someone to receive POW status. Similarly, whether a civilian isconsidered to be taking a direct part in hostilities does not depend on that persons age.

Children who have participated in hostilities or been associated with an armed force whoare detained might require additional consideration because of their age. For example, rules forthe additional provision for their education might be applicable. 447 Similarly, it might beappropriate to take into account the age of a defendant in determining liability or punishment forviolations of the law of war.

443 See United States, Statement on Ratification of the Child Soldiers Protocol, Dec. 23, 2002, 2201 UNTS 311, 312((2) The United States understands that, with respect to Article 1 of the Protocol - (B) the phrase direct part inhostilities - (i) means immediate and actual action on the battlefield likely to cause harm to the enemy because thereis a direct causal relationship between the activity engaged in and the harm done to the enemy; and (ii) does notmean indirect participation in hostilities, such as gathering and transmitting military information, transportingweapons, munitions, or other supplies, or forward deployment;). This statement of understanding was intended toaddress the usage of the phrase direct part in hostilities in the context of these treaty obligations relating tolimiting the participation of children in armed conflict, and the phrase direct part in hostilities may be interpreteddifferently in other contexts, such as the circumstances in which civilians forfeit their protection from being madethe object of attack. Refer to 5.9 (Civilians Taking a Direct Part in Hostilities).444 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in ArmedConflict, art. 2, May 25, 2000, 2173 UNTS 222, 237 (States Parties shall ensure that persons who have not attainedthe age of 18 years are not compulsorily recruited into their armed forces.).445 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in ArmedConflict, art. 3(2), May 25, 2000, 2173 UNTS 222, 237 (Each State Party shall deposit a binding declaration uponratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntaryrecruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that suchrecruitment is not forced or coerced.).446 United States, Statement on Ratification of the Child Soldiers Protocol, Dec. 23, 2002, 2201 UNTS 311 ((A) theminimum age at which the United States permits voluntary recruitment into the Armed Forces of the United States is17 years of age; (B) The United States has established safeguards to ensure that such recruitment is not forced orcoerced, including a requirement in section 505 (a) of title 10, United States Code, that no person under 18 years ofage may be originally enlisted in the Armed Forces of the United States without the written consent of the personsparent or guardian, if the parent or guardian is entitled to the persons custody and control; (C) each person recruitedinto the Armed Forces of the United States receives a comprehensive briefing and must sign an enlistment contractthat, taken together, specify the duties involved in military service; and (D) all persons recruited into the ArmedForces of the United States must provide reliable proof of age before their entry into military service.).447 Refer to 9.16.2 (Education); 10.16.2 (Education).

1694.21 MERCENARIES

The act of being a mercenary is not a crime in customary international law nor in anytreaty to which the United States is a Party. 448 Under the customary law of war and the GPW,mercenaries receive the rights, duties, and liabilities of combatant status on the same basis asother persons. For example, being a mercenary or paid for participating in hostilities does notdeprive a person of POW status, if that person otherwise meets the requirements for POW status,such as by being a member of a militia that is part of the armed forces of a State. 449 Mercenariesmust comply with the law of war and may be tried and punished for violations of the law of waron the same basis as other persons. States that employ mercenaries are responsible for theirconduct, including their compliance with the law of war.

Mercenaries are often nationals of States that are not parties to a conflict. In general, anational of a neutral State who, during an international armed conflict, commits hostile actsagainst a State or who voluntarily enlists in the armed forces of one of the parties should not bemore severely treated by the State against whom he or she has abandoned his or her neutralitythan a national of the other belligerent State could be for the same act. 450

4.21.1 Treaties on Mercenaries. A number of treaty provisions are intended to repress

mercenary activities. The United States has not accepted any such provision because theseefforts are not consistent with fundamental principles of the law of war. 451

AP I denies mercenaries the right to be lawful combatants or POWs. 452 This provisionin AP I was adopted because certain States wanted to condemn mercenary groups that hadplayed a role in armed conflicts that had taken place in Sub-saharan Africa since 1960. 453

448 See Edward R. Cummings, Attorney-Adviser, Department of State, International Legal Rights of CapturedMercenaries, Oct. 17, 1980, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3457 (The act of being a mercenary is not a crime under international law. An individual who is accused ofbeing a mercenary and who is captured during an armed conflict is entitled to the basic humanitarian protections ofthe international law applicable in armed conflict, including those specified in the Geneva Convention Relative tothe Protection of Civilian Persons in Time of War (Aug. 12, 1949; TIAS No. 3365; 6 UST 3516). The specificrights which such an individual would be entitled to vary depending on whether the conflict is an internationalconflict or an internal one and, in the case of international armed conflicts, on whether the person is entitled toprisoner-of-war status.).449 Refer to 4.5 (Armed Forces of a State).450 Refer to 15.6.2.1 (No More Severe Treatment Than Nationals of an Opposing Belligerent State).451 See, e.g., The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D.Sofaer, Legal Adviser, United States Department of State, January 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OFINTERNATIONAL LAW AND POLICY 460, 469 (1987) ([Article 47 of AP I] was included in the Protocol not forhumanitarian reasons, but purely to make the political point that mercenary activity in the Third World isunwelcome. In doing so, this article disregards one of the fundamental principles of international humanitarian lawby defining the right to combatant status, at least in part, on the basis of the personal or political motivations of theindividual in question. This politicizing of the rules of warfare is contrary to Western interests and the interests ofhumanitarian law itself.).452 See AP I art. 47(1) (A mercenary shall not have the right to be a combatant or a prisoner of war.).453 BOTHE, PARTSCH, & SOLF, NEW RULES 269 (AP I art. 47, 2.2) (The condemnation and outlawing of mercenarygroups and individual mercenaries who had played a substantial (and often unsavoury) role in the armed conflicts

170However, AP I defines mercenary very narrowly. 454 For example, any member of the armedforces of a party to the conflict, or any member of the armed forces of any other State, who issent on official duty as a member of its armed forces, is not a mercenary as defined by AP I. 455In addition, although, under AP I, mercenaries lack the right to be a combatant or a POW, Partiesto AP I may nonetheless decide as a matter of policy to treat enemy mercenaries as lawfulcombatants or POWs.

Shortly after the adoption of AP I, the Convention for the Elimination of Mercenarism inAfrica was adopted, which uses the same definition of mercenary as AP I, 456 but creates greaterobligations for Parties to punish and repress mercenarism. 457 The United States is not a Party tothis treaty.

The International Convention against the Recruitment, Use, Financing and Training ofMercenaries of December 4, 1989, defines mercenary slightly more broadly than AP I, appliesto both international and non-international armed conflicts, and defines various offenses related

which took place in Sub-saharan Africa since 1960 was a high priority goal of African delegations, which wassupported by other Third World delegations and by the Eastern European group.).454 See AP I art. 47(2) (A mercenary is any person who: (a) Is specially recruited locally or abroad in order to fightin an armed conflict; (b) Does, in fact, take a direct part in the hostilities; (c) Is motivated to take part in thehostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict,material compensation substantially in excess of that promised or paid to combatants of similar ranks and functionsin the armed forces of that Party; (d) Is neither a national of a Party to the conflict nor a resident of territorycontrolled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f) Hasnot been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.).455 Edward R. Cummings, Attorney-Adviser, Department of State, International Legal Rights of CapturedMercenaries, Oct. 17, 1980, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3457, 3461 (This narrow definition of mercenaries in effect denies prisoner-of-war status to individuals whofight strictly for private gain. It does not affect any individual who is a member of the states regular forces andother legitimate combatants.).456 See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 1(1), Jul. 3,1977, 1490 UNTS 89, 96 (A mercenary is any person who: a) Is specially recruited locally or abroad in order tofight in an armed conflict; b) Does in fact take a direct part in the hostilities; c) Is motivated to take part in thehostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflictmaterial compensation; d) Is neither a national of a party to the conflict nor a resident of territory controlled by aparty to the conflict; e) Is not a member of the armed forces of a party to the conflict; and f) Is not sent by a Stateother than a party to the conflict on official mission as a member of the armed forces of the said State.).457 See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 6, Jul. 3, 1977,1490 UNTS 89, 97-98 (The contracting parties shall take all necessary measures to eradicate all mercenaryactivities in Africa. To this end, each contracting State shall undertake to: a) Prevent its nationals or foreigners onits territory from engaging in any of the acts mentioned in Article 1 of this Convention; b) Prevent entry into orpassage through its territory of any mercenary or any equipment destined for mercenary use; c) Prohibit on itsterritory any activities by persons or organisations who use mercenaries against any African State member of theOrganization of African Unity or the people of Africa in their struggle for liberation; d) Communicate to the otherMember States of the Organization of African Unity either directly or through the Secretariat of the OAU anyinformation related to the activities of mercenaries as soon as it comes to its knowledge; e) Forbid on its territory therecruitment, training, financing and equipment of mercenaries and any other form of activities likely to promotemercenarism; f) Take all the necessary legislative and other measures to ensure the immediate entry into force of thisConvention.).

171to the recruiting, use, financing, or training of mercenaries. 458 The United States is not a Party tothis treaty.

4.22 AP I PROVISIONS ON CIVIL DEFENSE PERSONNEL

Articles 61-67 of AP I address civil defence, i.e., the performance of certain

humanitarian tasks intended to benefit the civilian population. 459

The United States has supported the principle that civilian civil defense organizations andtheir personnel be respected and protected as civilians and be permitted to perform their civildefense tasks except in cases of imperative military necessity. 460 However, a number of militaryoperational problems have been identified with respect to the system of protection for civildefense established by AP I, and these provisions of AP I may be understood not to preclude anattack on an otherwise lawful military objective. 461

4.23 LAW ENFORCEMENT OFFICERS

In general, police officers receive the rights, duties, and liabilities of civilian status. 462However, law enforcement agencies are in many respects similar to military forces. They areauthorized to use necessary force on behalf of the State, are generally distinguishable fromprivate citizens, and are often organized like military forces. In cases where States choose to usepolice officers as part of the armed forces, they receive the rights, duties, and liabilities ofcombatant status. 463

458 See International Convention against the Recruitment, Use, Financing and Training of Mercenaries, Dec. 4, 1989,Annex to U.N. GENERAL ASSEMBLY RESOLUTION 44/34, U.N. Doc. A/RES/44/34 (Dec. 4, 1989).459 AP I art. 61 (For the purposes of this Protocol: (a) Civil defence means the performance of some or all of theundermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it torecover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for itssurvival. These tasks are: (i) Warning; (ii) Evacuation; (iii) Management of shelters; (iv) Management of blackoutmeasures; (v) Rescue; (vi) Medical services, including first aid, and religious assistance; (vii) Fire-fighting; ).460 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on theRelation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at theSixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 427 (1987)(Turning now to the field of civil defense, we support the principle that civilian civil defense organizations andtheir personnel be respected and protected as civilians and be permitted to perform their civil defense tasks except incases of imperative military necessity. We also support the principle that in occupied territories, civilians receivefrom the appropriate authorities, as practicable, the facilities necessary for the performance of their tasks. Theseprinciples reflect, in general terms, many of the detailed provisions in articles 62 and 63.).461 APPENDIX TO 1985 CJCS MEMO ON AP I 69-71 (In general, the system of protection for civil defense establishedby the Protocol is well-meaning, but creates a number of military operational problems. The main practicalproblems arise from the ambiguity of the definition of civil defense activities in Article 61. An attacking forcewill often have difficulty deciding whether to respect the sign in a particular case. To lessen the risk of misuse ofthis sign and avoid placing an unacceptable burden on proof of an attacking force, an understanding is proposed thatmakes it clear that Articles 61-67 do not preclude an attack on an otherwise lawful military objective.).462 Refer to 4.8 (Rights, Duties, and Liabilities of Civilians).463 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants).

172 4.23.1 Police as Civilians. In general, members of law enforcement agencies havecivilian status. 464 Furthermore, routine domestic law enforcement is part of the generalprotection of the civilian population and does not constitute taking a direct part in hostilitiesthat would deprive police officers of their protection from being made the object of attack. 465

4.23.2 Police With a Military Role. Some States use police forces in a paramilitarycapacity or use military forces in a police role. Members of the armed forces engaged in policeroles are combatants.

The extent to which police officers are treated as combatants largely depends on whetherthe State decides to use them in that capacity. States may decide to make law enforcementagencies part of their armed forces. 466 Members of these law enforcement agencies, like othermembers of those armed forces, receive combatant status by virtue of their membership in thearmed forces. 467 In addition, States may authorize members of the law enforcement agencies toaccompany their armed forces without incorporating them into their armed forces. Thesepersons have the legal status of persons authorized to accompany the armed forces. 468

4.23.3 Police in Non-International Armed Conflict. Police officers may play a larger rolein armed conflicts between States and insurgent or terrorist groups because in such conflicts theState may treat all enemy persons participation in hostilities as criminal. 469

4.24 JOURNALISTS

In general, journalists are civilians. However, journalists may be members of the armedforces, persons authorized to accompany the armed forces, or unprivileged belligerents.

4.24.1 Military Journalists. Members of the armed forces may serve as journalists or insome other public affairs capacity. These persons have the same status as other members of thearmed forces. 470

464 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVEDIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3450 (Members of the civilian policeforce are not deemed to be legitimate objects of attack during international wars unless they are incorporated into thearmed forces. The status of police is generally that of civilians for purposes of the law of war.).465 Refer to 5.9.3.2 (Examples of Acts Not Considered Taking a Direct in Hostilities).466 For example, Belgium, Statement on Ratification of AP I, May 20, 1986, 1435 UNTS 367, 367-68 (Consideringparagraph 3 of article 43 (armed forces) and the special status of the Belgian gendarmerie, the Belgian Governmenthas decided to notify the High Contracting Parties about the following duties which are entrusted to the Belgiangendarmerie during periods of armed conflict. It believes that this notification, in so far as is necessary, meets therequirements of article 43 in respect of the gendarmerie. (a) The Belgian gendarmerie, which was established tomaintain order and enforce the law, is a public force which, under national legislation, constitutes one of the armedforces and which therefore corresponds to the concept of armed forces of a party to a conflict within the meaningof article 43 of Protocol I. Thus, in times of international armed conflict the members of the gendarmerie havecombatant status within the meaning of that Protocol.).467 Refer to 4.5 (Armed Forces of a State).468 Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).469 Refer to 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

173 4.24.2 Other Journalists. In general, independent journalists and other mediarepresentatives are regarded as civilians; 471 i.e., journalism does not constitute taking a directpart in hostilities such that such a person would be deprived of protection from being made theobject of attack. 472

authorized to accompany the armed forces have the status of such persons. 473 For example, theyare detained as POWs during international armed conflict. 474 Such journalists are sometimescalled war correspondents. 475 DoD practice has been to embed journalists with units duringmilitary operations. 476

Journalists authorized to accompany the armed forces may be detained by opposing

military forces. Since such personnel are liable to become POWs, they must be issuedidentification cards so that they may establish their entitlement to POW status upon capture bythe enemy during international armed conflict. 477

4.24.3 General Rules for the Treatment of Civilian Journalists and Journalists Authorizedto Accompany the Armed Forces.

4.24.3.1 Journalists - Risks in Areas of Military Operations. Journalists who

enter areas of military operations assume a significant risk that they could be injured or killed

470 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants).471 See Hedges v. Obama, No. 12-3644, Reply Brief for Defendant-Appellant, 11 (2d Cir. Sept. 20, 2012) (As aninitial matter, it is an established law of war norm, which is reflected in Article 79 of Additional Protocol I to theGeneva Conventions, that journalists are generally to be protected as civilians. Although the United States is nota party to Additional Protocol I, it supports and respects this important principle.). Consider AP I art. 79(MEASURES OF PROTECTION FOR JOURNALISTS. 1. Journalists engaged in dangerous professional missions in areasof armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1. 2. They shall beprotected as such under the Conventions and this Protocol, provided that they take no action adversely affectingtheir status as civilians, and without prejudice to the right of war correspondents accredited to the armed forces tothe status provided for in Article 4 A (4) of the Third Convention.).472 Refer to 5.9.3.2 (Examples of Acts Not Considered Taking a Direct in Hostilities).473 Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).474 See GPW art. 4A(4) (defining prisoners of war, in the sense of the present Convention to include [p]ersonswho accompany the armed forces without actually being members thereof, such as war correspondents, provided that they have received authorization from the armed forces which they accompany, who have fallen intothe power of the enemy); HAGUE IV REG. art. 13 (Individuals who follow an army without directly belonging to it,such as newspaper correspondents and reporters, who fall into the enemys hands and whom the latter thinksexpedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificatefrom the military authorities of the army which they were accompanying.).475 GPW art. 4A(4); AP I art. 79(2).476 DEPARTMENT OF THE ARMY FIELD MANUAL 46-1, Public Affairs Operations, 25-26 (May 30, 1997) (PAOsshould seek out those members of the media who are willing to spend extended periods of time with soldiers duringan operation, embedding them into the unit they cover. Embedding is the act of assigning a reporter to a unit as amember of the unit. The reporter eats, sleeps, and moves with the unit. The reporter is authorized open access to allsections of the unit and is not escorted by public affairs personnel. Rather, the unit is the reporters escort.).477 Refer to 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

174incidental to an enemy attack or from other dangers. 478 To minimize the risk that they will bemade the object of attack, journalists should seek to distinguish themselves from military forces.Moreover, in some cases, the relaying of information (such as providing information ofimmediate use in combat operations) could constitute taking a direct part in hostilities.479Civilian journalists and journalists authorized to accompany the armed forces should notparticipate in the fighting between the belligerents in this or other ways if they wish to retainprotection from being made the object of attack. 480 Like other civilians, civilian journalists whoengage in hostilities against a State may be punished by that State after a fair trial.

4.24.4 Journalists and Spying. Reporting on military operations can be very similar tocollecting intelligence or even spying. 481 A journalist who acts as a spy may be subject tosecurity measures and punished if captured. 482 To avoid being mistaken for spies, journalistsshould act openly and with the permission of relevant authorities. Presenting identificationdocuments, such as the identification card issued to authorized war correspondents or otherappropriate identification, may help journalists avoid being mistaken as spies. 483

4.24.5 Security Precautions and Journalists. States may need to censor journalists workor take other security measures so that journalists do not reveal sensitive information to theenemy. Under the law of war, there is no special right for journalists to enter a States territorywithout its consent or to access areas of military operations without the consent of the Stateconducting those operations. 484

4.25 DELEGATES OR REPRESENTATIVES OF THE PROTECTING POWERS

4.25.1 Appointment of Delegates of the Protecting Powers. The Protecting Powers mayappoint, apart from their diplomatic or consular staff, delegates from among their own nationalsor the nationals of other neutral Powers to carry out its duties under the GPW and the GC. 485478 For example, Ernie Pyle Is Killed on Ie Island; Foe Fired when All Seemed Safe, THE NEW YORK TIMES, Apr.19, 1945 (GUAM, April 18Ernie Pyle died today on Ie Island, just west of Okinawa, like so many of thedoughboys he had written about. The nationally known war correspondent was killed instantly by Japanesemachine-gun fire. The slight, graying newspaper man, chronicler of the average American soldiers daily round, inand out of foxholes in many war theatres, had gone forward early this morning to observe the advance of a well-known division of the Twenty-fourth Army Corps.). Refer to 4.15.2.3 (Increased Risk of Incidental Harm).479 Refer to 5.9.3.1 (Examples of Taking a Direct Part in Hostilities).480 Consider AP I art. 79 (Journalists engaged in dangerous professional missions in areas of armed conflict shallbe protected as civilians from attack provided that they take no action adversely affecting their status as civilians,).481 Refer to 4.17.2 (Spies).482 Refer to 4.19.3.3 (Necessary Security Measures); 4.19.4 (Unprivileged Belligerents Liability forParticipation in Hostilities).483 Consider AP I art. 79(3) (journalists may obtain an identity card similar to the model in Annex II of thisProtocol. This card, which shall be issued by the government of the State of which the journalist is a national or inwhose territory he resides or in which the news medium employing him is located, shall attest to his status as ajournalist.).484 Compare 4.26.2 (Consent of the Parties to the Conflict Concerned).485 GPW art. 8 (For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff,delegates from amongst their own nationals or the nationals of other neutral Powers.); GC art. 9 (same).

175These delegates shall be subject to the approval of the Power with which they are to carry outtheir duties. 486

4.25.2 Duties of the Representatives or Delegates of the Protecting Power. The parties tothe conflict shall facilitate to the greatest extent possible the task of the representatives ordelegates of the Protecting Powers. 487

The representatives or delegates of the Protecting Powers shall not in any case exceedtheir mission under the 1949 Geneva Conventions. 488 They shall, in particular, take account ofthe imperative necessities of security of the State wherein they carry out their duties. 489

4.25.3 Restrictions on Representatives of the Protecting Powers. A belligerent may

impose legitimate security restrictions on the activities of the delegates or representatives of theProtecting Powers working in its territory or in its facilities. However, belligerents should onlyrestrict the activities of the representatives or delegates of the Protecting Powers as anexceptional and temporary measure when this is rendered necessary by imperative militarynecessities. 490 For example, a belligerent may postpone a visit by Protecting Powerrepresentatives to a POW camp for security or humanitarian reasons, such as tactical movementof its own forces or to protect Protecting Power personnel from explosive remnants of war beingcleared from recent military operations along the route to the POW camp.

4.26 ICRC AND OTHER IMPARTIAL HUMANITARIAN ORGANIZATIONS

The 1949 Geneva Conventions contemplate that the ICRC and other impartialhumanitarian organizations may, subject to the consent of the parties to the conflict concerned,provide humanitarian aid and seek to ensure the protection of war victims in armed conflict. 491In some cases, the ICRC or another impartial humanitarian organization may assume thehumanitarian functions performed by the Protecting Powers. 492

4.26.1 Impartial. To be an impartial humanitarian organization under the 1949

Geneva Conventions, a humanitarian organization must be impartial. The requirement of

486 GPW art. 8 (The said delegates shall be subject to the approval of the Power with which they are to carry outtheir duties.); GC art. 9 (same).487 GPW art. 8 (The Parties to the conflict shall facilitate to the greatest extent possible the task of therepresentatives or delegates of the Protecting Powers.); GC art. 9 (same).488 GPW art. 8 (The representatives or delegates of the Protecting Powers shall not in any case exceed their missionunder the present Convention.); GC art. 9 (same).489 GPW art. 8 (They shall, in particular, take account of the imperative necessities of security of the State whereinthey carry out their duties.); GC art. 9 (same).490 GWS art. 8; GWS-SEA art. 8 (same). Refer to 9.33.1 (Access by Protecting Powers); 10.33.1 (Access byProtecting Powers).491 See, e.g., GWS art. 9 (The provisions of the present Convention constitute no obstacle to the humanitarianactivities which the International Committee of the Red Cross or any other impartial humanitarian organization may,subject to the consent of the Parties to the conflict concerned, undertake for the protection and relief of personsprotected by the Convention); GWS-SEA art. 9 (same); GPW art. 9 (same); GC art. 10 (same).492 Refer to 18.15.2 (Appointment of a Protecting Power).

176impartiality distinguishes these humanitarian organizations from those with an allegiance to aparty to the conflict, such as national red cross societies. 493

4.26.2 Consent of the Parties to the Conflict Concerned. The activities of the ICRC orother impartial humanitarian organizations in a States sovereign territory, or in the area of aStates military operations, are subject to the consent of that State. 494 The requirement of Stateconsent is based on the States sovereign right to control access to its territory and a belligerentsright to control access to its military operations or territory it occupies. 495 For example,members of impartial humanitarian organizations, like other civilians, may be removed from thevicinity of military objectives for their protection. 496

States may grant access on a case-by-case basis; access granted to one impartialhumanitarian organization does not constitute entitlement of access for other humanitarianorganizations. Impartial humanitarian organizations that have been granted access must also actwithin the terms of this consent. 497 For comparison, the activities of the Protecting Power arealso subject to the consent of the affected States. 498

may attach conditions to their consent, including necessary security measures. For example, inthe past, armed groups have sometimes attempted to use humanitarian organizations as cover forparticipation in hostilities. 499 In addition to legitimate military considerations, other493 Refer to 4.11 (Authorized Staff of Voluntary Aid Societies).494 U.S. Comments on the International Committee of the Red Crosss Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE ININTERNATIONAL LAW 1991-1999 2057, 2066 (The obligations set forth in this paragraph generally are subject tothe consent of the parties to the conflict, as noted in Article 9 of the GPW and 10 of the GC. Although the U.S.historically has called upon the ICRC to assist it in implementation of the provisions of the 1949 GenevaConventions, ultimately any decision to seek assistance of the ICRC or any other humanitarian organization issubject to the consent of the parties to the conflict in general and the host nation in particular.).495 Refer to 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations); 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).496 Refer to 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).497 See U.S. RESPONSE TO ICRC CIHL STUDY 520 (We do not believe that rule 31, as drafted, reflects customaryinternational law applicable to international or non-international armed conflicts. The rule does not reflect theimportant element of State consent or the fact that States obligations in this area extend only to HRP [HumanitarianRelief Personnel] who are acting within the terms of their mission - that is, providing humanitarian relief. To theextent that the authors intended to imply a terms of mission requirement in the rule, the authors illustrated thedifficulty of proposing rules of customary international law that have been simplified as compared to thecorresponding treaty rules.).498 Refer to 18.15.3 (Activities of the Protecting Power).499 U.S. RESPONSE TO ICRC CIHL STUDY 519-20 (For example, during the 1982 Israeli incursion into Lebanon,Israel discovered ambulances marked with the Red Crescent, purportedly representing the Palestinian Red CrescentSociety, carrying able-bodied enemy fighters and weapons. This misconduct reportedly was repeated during the2002 seizure of Bethlehems Church of the Nativity by members of the terrorist al Aqsa Martyrs Brigade. Military commanders also have had to worry about individuals falsely claiming HRP [humanitarian relief personnel]status, as happened in Afghanistan when some members of Al Qaeda captured while fighting claimed to be workingfor a humanitarian relief organization. These examples demonstrate why States, in crafting treaty provisions on thistopic, have created a terms of mission condition for HRP in a way that rule 31 fails to do.).

177considerations may also limit access by impartial humanitarian organizations to militaryoperations. For example, the GPW obligates a Detaining Power to protect POWs from publiccuriosity, which may entail limiting access to POWs by private organizations. 500

Obligation. In certain cases, however, there may be an obligation to take measures to helpprotect the personnel of certain humanitarian organizations that are performing functions withthe consent of the Party the CCW Amended Mines Protocol on whose territory the functions areperformed from the effects of mines, booby-traps, and other devices. 501

4.26.3 Special Status of the ICRC. The 1949 Geneva Conventions explicitly recognizethe special position of the ICRC among impartial humanitarian organizations. 502 Similarly,Congress has specifically authorized and the President has designated the ICRC to beextended the same privileges and immunities that are afforded to public internationalorganizations in which the United States participates. 503 The President has also recognized therole of the ICRC in visiting individuals detained in armed conflict. 504 The United States hasrelied on the ICRCs capacity, particularly in conflict situations, and has contributedsubstantially to the ICRCs work. 505 The United States has maintained a very constructivedialogue with the ICRC.

The ICRC does important work in visiting detainees, facilitating communication betweendetainees and their families, organizing relief operations, and undertaking similar humanitarianactivities during armed conflicts. For example, the ICRC has performed the functions of a

500 Refer to 9.5.3 (Protection Against Insults and Public Curiosity).501 Refer to 6.12.11 (Obligation to Seek to Protect Certain Groups From the Effects of Minefields, Mined Areas,Mines, Booby-Traps, and Other Devices).502 See, e.g., GPW art. 125 (The special position of the International Committee of the Red Cross in this field shallbe recognized and respected at all times.); GC art. 142 (same).503 See 22 U.S.C. 288f-3 (The International Committee of the Red Cross, in view of its unique status as animpartial humanitarian body named in the Geneva Conventions of 1949 and assisting in their implementation, shallbe considered to be an international organization for the purposes of this subchapter and may be extended theprovisions of this subchapter in the same manner, to the same extent, and subject to the same conditions, as suchprovisions may be extended to a public international organization in which the United States participates pursuant toany treaty or under the authority of any Act of Congress authorizing such participation or making an appropriationfor such participation.); Executive Order 12643, International Committee of the Red Cross, 53 FEDERAL REGISTER24247 (Jun. 23, 1988) (I hereby extend to the International Committee of the Red Cross the privileges, exemptions,and immunities provided by the International Organizations Immunities Act.).504 Refer to 8.10.4 (ICRC Access to Detainees).505 Gary Robbins, Charg dAffaires, Department of State, U.S. Mission to the Organization for Security andCooperation in Europe, Response to Ambassador Peter Maurer, President of the International Committee of the RedCross, Jan. 30, 2014 (We honor the work that the ICRC has done over the past 150 years. With its foundingprinciples of impartiality, neutrality, and independence, the ICRC is able to carry out crucial work where otherscannot. The United States values the ICRCs work and relies on its capacity, particularly in conflict situations. Infiscal year 2013, the United States contributed more than $280 million to the ICRCs work, which reflects ourconfidence in the organization. We look forward to supporting the ICRC in the future as we confront significanthumanitarian need around the globe.).

178Protecting Power during armed conflict. 506 In addition, the ICRC has performed the functions ofthe Central Information Agency for POWs and protected persons during international armedconflict. 507 In order to facilitate access, the ICRC conducts its visits to detention facilities on aconfidential basis, a practice that DoD has sought to respect. 508

The ICRC has issued policy proposals or interpretative guidance on a variety of

international law issues. Although the ICRCs proposals and interpretations do not have bindinglegal effect, they have often been helpful to States. In some cases, the United States and otherStates have not accepted the ICRCs proposals or interpretations and instead expressed opposingviews. For example, the United States has not accepted the ICRCs study on customaryinternational humanitarian law nor its interpretive guidance on direct participation inhostilities. 509

4.27 DETERMINING THE STATUS OF DETAINEES IN CASES OF DOUBT

4.27.1 Identification Cards Used to Help Clarify Status. The 1949 Geneva Conventionscontemplate that identification cards will be used to help clarify the status of detainees ininternational armed conflict. 510 Parties to the GPW must provide identity cards to persons undertheir jurisdiction who are liable to become POWs. 511 Similarly, Parties to the GWS mustprovide retained personnel with a special identity card that denotes their status. 512 Capturingunits should not take these identity cards from POWs or retained personnel. 513 In addition,States should retain duplicate copies of identification cards that they issue. 514 In contemporary

506 Refer to 18.15.2.3 (Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed byProtecting Powers Under the 1949 Geneva Conventions).507 Refer to 9.31.3 (Central POW Information Agency); 10.31.3 (Central Information Agency for ProtectedPersons).508 See, e.g., American Civil Liberties Union v. Department of Defense, 389 F. Supp. 2d 547, 554 (S.D.N.Y. 2005)(noting that DoD policy requires confidential treatment of all ICRC communications). For discussion of the ICRCpractice of confidentiality, see Prosecutor v. Blagoje Simic et al., ICTY Trial Chamber, IT-95-9, Decision on theProsecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 45-74 (Jul. 27, 1999);Prosecutor v. Blagoje Simic, et al., ICTY Trial Chamber, IT-95-9, Separate Opinion Of Judge David Hunt OnProsecutors Motion For A Ruling Concerning The Testimony Of A Witness, 14-33 (Jul. 27, 1999).509 Refer to 19.25 (2005 ICRC Study on Customary International Humanitarian Law); 5.9.1.2 (AP I, Article51(3) Provision on Direct Participation in Hostilities).510 See, e.g., GPW COMMENTARY 52 (If need be, any person to whom the provisions of Article 4 [of the GPW] areapplicable can prove his status by presenting the identity card provided for in Article 17.).511 Refer to 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).512 Refer to 7.9.2 (Use of Identification Card to Help Establish Retained Personnel Status).513 GPW art. 17 (The identity card shall be shown by the prisoner of war upon demand, but may in no case be takenaway from him.); GWS art. 40 (In no circumstances may the said personnel be deprived of their insignia oridentity cards nor of the right to wear the armlet. In case of loss, they shall be entitled to receive duplicates of thecards and to have the insignia replaced.).514 GWS art. 40 (Identity cards for military medical and religious personnel should be made out, if possible, at leastin duplicate, one copy being kept by the home country.); GPW art. 17 (Identity cards for prisoners of war [a]s faras possible shall be issued in duplicate.).

179practice, modern storage systems, such as computer databases, are used rather than storingduplicates of the issued identification cards. 515

Producing an identification card to capturing forces is not necessarily a prerequisite for a

person to be entitled to a particular status. Identification cards may become lost, damaged, orstolen during military operations, so a failure to produce an identity card does not necessarilymean that person lacks a particular status. 516

4.27.2 POW Protections for Certain Persons Until Status Has Been Determined.Capturing personnel may be unable to establish a detainees status, including whether that personis entitled to POW status under the GPW. For example, a detainee might have lost his or heridentity card or the detainee might be a deserter who does not wish to admit that he or she is amember of enemy armed forces.

During international armed conflict, should any doubt arise as to whether persons, havingcommitted a belligerent act and having fallen into the hands of the enemy, belong to any of thecategories enumerated in Article 4 of the GPW, such persons shall enjoy the protection of theGPW until such time as their status has been determined by a competent tribunal. 517

4.27.3 Competent Tribunal to Assess Entitlement to POW Status or Treatment. The

competent tribunal in Article 5 of the GPW is often called an Article 5 tribunal. In somecases, courts have undertaken to assess whether a detainee is entitled to POW status,518 but a

515 For example, DOD INSTRUCTION 1000.01, Identification (ID) Cards Required by the Geneva Conventions,3(a)(3) (Apr. 16, 2012) (The duplicate ID card requirements of Article 17 of Reference (f), to facilitateidentification of POWs with the Prisoner of War Information Bureau as delineated in Article 122 of Reference (f),are more adequately met by the information routinely maintained in the Defense Enrollment Eligibility ReportingSystem (DEERS). Accordingly, duplicate ID cards will not be required.).516 See, e.g., GPW COMMENTARY 64-65 (noting that States at the Diplomatic Conference of Geneva of 1949considered that the capacity in which the person was serving should be a determining factor; the possession of a[nidentification] card is not therefore an indispensable condition of the right to be treated as a prisoner of war, but asupplementary safeguard).517 GPW art. 5 (Should any doubt arise as to whether persons, having committed a belligerent act and having falleninto the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy theprotection of the present Convention until such time as their status has been determined by a competent tribunal.).Consider AP I art. 45(1) (A person who takes part in hostilities and falls into the power of an adverse Party shall bepresumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status ofprisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such statuson his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as towhether any such person is entitled to the status of prisoner of war, he shall continue to have such status and,therefore, to be protected by the Third Convention and this Protocol until such time as his status has beendetermined by a competent tribunal.).518 See, e.g., United States v. Lindh, 212 F. Supp. 2d 541, 557-58 (E.D. Va. 2002) (assessing whether a capturedTaliban fighter was entitled to POW status under GPW); United States v. Noriega, 808 F. Supp. 791, 794-96 (S.D.Fla. 1992) (assessing whether a captured Panamanian General was entitled to POW Status under GPW); StanislausKrofan & Anor. v. Public Prosecutor, (Singapore Federal Court, 1966), LEVIE, DOCUMENTS ON POWS 732-36(assessing whether captured Indonesian saboteurs were entitled to POW status under GPW); The MilitaryProsecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13, 1969), LEVIE,DOCUMENTS ON POWS 771-80 (assessing whether members of the Popular Front for the Liberation of Palestinewere entitled to POW status under GPW).

180competent tribunal generally entails the Detaining Power convening an administrativeboard. 519 The GPW affords the Detaining Power substantial discretion regarding thecomposition and procedures of an Article 5 tribunal. 520

Article 5 only requires a tribunal if there is any doubt regarding a persons entitlementto POW status or treatment. 521 For example, if there was no doubt that the armed group to whicha person belongs fails to qualify for POW status, then the GPW would not require a tribunal toadjudicate the persons claim to POW status by virtue of membership in that group. 522

4.27.4 Tribunals to Assess Other Detainee Issues. By its terms, Article 5 of the GPWonly addresses a persons entitlement to POW status or treatment. However, an administrativeprocess may be appropriate to address status questions besides entitlement to POW status ortreatment, such as whether detainees are retained personnel or civilians. DoD practice has beento use Article 5 tribunals or similar administrative tribunals to address those issues. 523 Forexample, DoD used administrative tribunals to address a variety of detainee issues duringdetention operations in Viet Nam, 524 Panama, 525 the Persian Gulf in 1991, 526 Iraq in 2003, 527519 Denmark proposed the